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Domestic court Emissions reductions/mitigation European Convention on Human Rights Fair trial Farming Just transition litigation Paris Agreement Private and family life Right to development and work Right to health Right to life Right to property Separation of powers Standing/admissibility Switzerland Uncategorized Victim status Vulnerability

Uniterre et al. v. Swiss Department of the Environment (Swiss Farmers Case)

Summary:
On 5 March 2024, a group of nine individual Swiss farmers, along with 5 associations representing farming-related interests, submitted a request to the Swiss Department of Environment, Transport, Energy and Communication (DETEC), demanding enhanced governmental action to protect them against the impacts of climate change. Noting increasing summer drought periods that particularly impact their human and constitutional rights and livelihoods, they alleged inadequacies in the existing Swiss climate policy response. In doing so, they submitted that:

As farmers and as associations defending the interests of farmers, the Petitioners and Petitioner Associations are particularly affected by climate change, which infringes their fundamental rights. It affects their harvests and jeopardizes the viability of their farms. Climate disruption has been encouraged by the Authority’s climate inaction. This serious negligence on the part of the Authority now justifies the filing of the present petition (translated from the original French).

Response by DETEC:
On 20 September 2024, DETEC rejected the petitioners’ request, finding that the alleged omissions did not impact the individual petitioners more intensely than other segments of the population, meaning that they lacked an interest worthy of protection, as well as standing. The same result was reached concerning the five petitioning associations (which are Uniterre, Kleinbauern-Vereinigung, Biogenève, Schweizer Bergheimat and Les jardins de cocagne).

The request to DETEC was made pursuant to Art. 25a of the Swiss Federal Administrative Procedure Act (APA), requesting that the government (and more specifically DETEC) should refrain from the alleged unlawful acts impacting the petitioners’ human and constitutional rights and livelihoods. Art. 25a APA provides that:

In other words, Art. 25a APA allows persons whose rights or obligations are impacted by ‘real acts’ of the federal authorities to seek a (subsequently legally contestable) ruling concerning the situation. This approach has been used by climate litigants to contest policy lacunae given that constitutionality review of existing federal legislation is not possible under Swiss Constitutional law. A similar request was the starting point of the landmark KlimaSeniorinnen case that was ultimately decided upon by the European Court of Human Rights (ECtHR) in 2024.

However, and much like the KlimaSeniorinnen association and its members, the present petitioners did not succeed with their request to DETEC. On 20 September 2024, DETEC rejected their request. Uniterre, one of the petitioning associations, argued that DETEC had thereby ignored the ECtHR’s KlimaSeniorinnen judgment, which established that there were access to justice issues for climate applicants in Switzerland by finding a violation of the right to a fair trial (Art. 6 of the European Convention on Human Rights (ECHR)).

DETEC’s reasoning did note the KlimaSeniorinnen judgment. First, it argued that the ECtHR had not considered recent developments in Swiss climate policy, emphasizing that Switzerland had a “long history of climate policy” and had only “barely” missed its 2020 national emissions reductions target. DETEC also noted the domestic findings in the KlimaSeniorinnen case, where Swiss courts had left open the question of whether the applicant association in that case had standing. It did not, in doing so, mention the later ruling of the ECtHR, which found that the conduct of these domestic proceedings and particularly the domestic instances’ treatment of the association’s standing claim had violated fair trial rights. Instead, it relied only on the reasoning of the domestic instances in KlimaSeniorinnen to find that the plaintiffs in the present case did not have a sufficient interest to seek legal protection given that they had failed to demonstrate “how they are more affected by the material acts of which DETEC is accused than the rest of the agricultural world, or other economic sectors that may be impacted by global warming (forestry, fishing, etc.), or other groups of people (children, pregnant women, the elderly, etc.). Nor do the individual Claimants establish for each of them that a particular level and severity of damage is likely to be caused by climate change.” (translated from the original French). DETEC found that “what is at stake in the application is the protection of the community as a whole, and not just of individuals, so that it is akin to a form of actio popularis [meaning] that the individual applicants are pursuing public interests that cannot justify victim status.”

Concerning the standing of associations, DETEC noted that the Swiss federal executive had “rejected the extension of associations’ right of appeal to include climate issues, as set out by the European Court of Human Rights [in KlimaSeniorinnen]”. It also noted that the associations did not pursue the specific goal of defending the fundamental rights of their members or other affected individuals in Switzerland, and that alleging that they did do so would be impossible because the associations in question “were all created before the global awareness of the threat of anthropogenic global warming, and therefore before the adoption of the UNFCCC in 1992.”

Overall, DETEC found that while it could not rule out “that the State’s material acts (actions or omissions) in the field of climate change are in principle capable of producing sufficient effects on the Petitioners to affect the right to protection of private and family life, the right to protection of the home guaranteed by art. 13 para. 1 Cst. as well as the guarantee of property (art. 26 Cst.) and economic freedom (art. 27 Cst.) [and] that Switzerland can, in a global context, have an influence on global warming, the fact remains that it is too small to have a decisive influence in this area, in the sense that there is no direct causal link between the actions or omissions of Switzerland and the effects of global warming, the latter being marked above all by the major industrial powers” (translated from the original French). This meant that “Switzerland’s material actions, while morally and politically relevant, have only a marginal effect on global climate change”.

Case before the Swiss Federal Administrative Tribunal:
On 23 October 2024, the plaintiffs challenged the DETEC decision before the Swiss Federal Administrative Tribunal. They invoked four main grounds for appeal, namely that:

  • By ignoring the ECtHR’s KlimaSeniorinnen ruling, the decision violates federal law, the principle of the separation of powers and the binding force of judgments of the ECtHR (art. 46 ECHR). In particular, the applicants argue that the federal executive has undermined judicial oversight “by arrogating to itself the right to emancipate itself from judicial control”.
  • DETEC’s actions and omissions are contrary to law, as is clear from the KlimaSeniorinnen ruling.
  • The (individual) appellants have standing to bring an action, contesting DETEC’s arguments about the limited impact of Swiss emissions on a global scale and arguing that there is no right to “l’égalité dans l’illégalité”. They emphasized the economic losses and health impacts facing the appellants, with impacts on several fundamental rights, and argued that the refusal to recognize the affectedness of the applicants represented a denial of access to justice and a violation of the right to a fair trial as enshrined in domestic law and Article 6 ECHR.
  • The appellant associations have standing as parties, and DETEC’s refusal to follow the case-law of the European Court of Human Rights (KlimaSeniorinnen) in this regard had violated fair trial and access to justice entitlements enshrined, among others, in Art. 6 ECHR. The ECtHR had not required associations’ statutes to explicitly mention fundamental rights protection. Furthermore, the statutes and aims of the five associations all related to protecting smallholder, sustainable and/or biological farming, with one association (Uniterre) explicitly pursuing the protection of the human rights of peasants and other rural workers as recognized in the 2018 UN Declaration on the Rights of Peasants (UNDROP).

The plaintiffs sought orders to the effect that:

  • An expert study should be commissioned concerning the contribution of climate change to worsening drought in Switzerland and reducing agricultural productivity;
  • The government should be ordered to take every measure needed to avoid negative climate impacts and contribution to chronic drought on Swiss territory, abstain from actions causing corresponding impacts, and take every measure capable of reducing or eliminating the impacts of climate change, chronic drought, and the rights violations complained of.
  • A violation of the right to life (Art. 10 of the Swiss Constitution/Art. 2 ECHR), the right to private life (Art. 13 of the Swiss Constitution/Art. 8 ECHR), the right to property (Art. 26 of the Swiss Constitution, Switzerland not having ratified the first additional protocol to the ECHR that enshrines this right), and the right to economic liberty (Art. 27 of the Swiss Constitution) had taken place.
  • A violation of the climate objectives and environmental protection requirements enshrined in domestic legislation had taken place, insufficient measures had been taken to ensure respect for the Paris Agreement, and overall the sum of the action taken with a direct or indirect impact on the climate had been insufficient.

Status of the case:
Pending before the Swiss Federal Administrative Tribunal.

Case documents:
The full text of the initial request as submitted to the Swiss Department of the Environment, Transport, Energy and Communication (DETEC) is available below, as made available by Advocat.e.s pour le Climat (in French).

The DETEC decision is available below.

The full text of the appeal to the Federal Administrative Tribunal is available below.

Further reading:

  • More information on the case is available via SwissInfo.
  • See also the comment by Charlotte E. Blattner, Robert Finger & Karin Ingold in Nature.

Suggested citation:
Swiss Federal Administrative Court, Uniterre et al. v. Swiss Department of the Environment (Swiss Farmers Case), case filed 23 October 2024 (pending).

Last updated:
2 June 2025.

Categories
Adaptation African Court on Human and Peoples' Rights Business responsibility / corporate cases Children and young people Children's rights/best interests Climate activists and human rights defenders Climate-induced displacement Deforestation Disability and health-related inequality Elderly Emissions reductions/mitigation Environmental racism Evidence Extreme poverty Farming Gender / women-led Human dignity Indigenous peoples rights Indigenous peoples' rights Loss & damage Minority rights Non-discrimination Paris Agreement Participation rights Private and family life Prohibition of torture Renewable energy Right to a healthy environment Right to assembly and association Right to development and work Right to education Right to freedom of expression Right to health Right to housing Right to life Right to property Right to subsistence/food Rights of nature Sea-level rise Self-determination Standing/admissibility Victim status Vulnerability

African Court on Human and People’s Rights Climate Advisory Opinion

Summary:
On 2 May 2025, a request for an advisory opinion on climate change was submitted to the African Court on Human and People’s Rights. The request was submitted by the Pan African Lawyers Union (PALU), in collaboration with the African Climate Platform, and other African Civil society Organizations including the Environmental Lawyers Collective for Africa, Natural Justice and resilient40, and seeks clarification of States’ obligations in the context of climate change.

Submitted under article 4 of the Protocol to the African Charter on Human and People’s Rights on the establishment of an African Court on Human and People’s Rights and Rule 82(1) of the Rules of the African Court on Human and Peoples Rights, the request submits that “[a]cross the continent, Africans are suffering the consequences of climate change, whether from rising temperatures, unrelenting droughts, catastrophic floods, vanishing biodiversity, or threats to livelihoods. Climate change in Africa has had prior, current and will have future consequences that impact the enjoyment of numerous rights.”

The request sets out impacts, disaggregating them region-by-region and in terms of the groups of people most affected by climate change (mentioning women and girls, children, the elderly, Indigenous peoples, and environmental human rights defenders in particular).

The request then goes on to discuss several issues of law, beginning with issues of admissibility and jurisdiction and then relying on a wide range of rights and instruments, namely:

  • a) the Constitutive Act of the African Union
  • b) the African Charter for Human and Peoples Rights (‘Banjul Charter’), especially articles 2, 3, 4, 5, 8, 9, 10, 11, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 60 and 61
  • c) African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention)
  • d) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol)
  • e) The African Charter on the Rights and Welfare of the Child
  • f) The Revised African Convention on Conservation of Nature
  • g) Any other Relevant Instrument.

In doing so, PALU invites the Court to consider international climate change law, including the UNFCCC, the Kyoto Protocol and the Paris Agreement as well as the UN Conventions on Combatting Desertification and on Biological Diversity.

Rights invoked in more detail:
PALU submits that “a rights-based climate approach is needed to address the challenges posed by climate change” and that the human rights framework “provides a robust legal framework upon which the Court may rely to define States’ responsibilities and duties in the context of climate change […] because the Charter clearly provides for collective rights and the explicit protection of the right to a healthy environment.” PALU accordingly invites the Court to consider the following provisions of the Banjul Charter:

  • Articles 2 and 3 (equality and non-discrimination)
  • Article 4 (right to life and inviolability of the human person)
  • Article 5 (right to respect for dignity and prohibition of all forms of exploitation and degradation, including slavery and torture)
  • Article 8 (freedom of conscience and religion)
  • Article 9 (freedom of information and opinion)
  • Article 10 (freedom of association)
  • Article 11 (freedom of assembly)
  • Article 12 (freedom of movement, residence and asylum; prohibition of mass expulsion)
  • Article 14 (right to property)
  • Article 16 (right to health)
  • Article 17 (right to education)
  • Article 18 (protection of the family, prohibition of age and gender discrimination)
  • Article 19 (equality of peoples, prohibition of domination)
  • Article 20 (right of peoples to existence and self-determination)
  • Article 21 (right of peoples to freely dispose of their wealth and natural resources)
  • Article 22 (right of peoples to their economic, social and cultural development)
  • Article 23 (right of peoples to national and international peace and security)
  • Article 24 (right of all peoples to a general satisfactory environment favorable to their development)
  • The request also discusses the implied rights to food and shelter.

Issues for determination:
PALU submits the following issues for determination by the Court (paraphrased):

(a) Whether the Court can be seized with the question of obligations concerning climate change under the Banjul Charter and other relevant instruments?

(b) Whether the Court can interpret and lay down applicable custom and treaty law regarding States’ obligations and duties in the context of climate change?

If these questions are resolved in the affirmative, the Court is invited to further determine:

(a) What, if any, are States’ human and peoples’ rights obligations to protect and safeguard the rights of individuals and peoples of the past (ancestral rights), and present and future generations?

(b) Whether States have positive obligations to protect vulnerable populations including environmental human rights defenders, indigenous communities, women, children, youth, future generations, the current generation, past generations, the elderly and people with disabilities from the impact of climate change in line with the relevant treaties?

(c) What human rights obligations do States have to facilitate a just, transparent, equitable and accountable transition in the context of climate change in Africa?

(d) What are the obligations of African States in implementing adaptation, resilience and mitigation measures in response to climate change?

(e) What, if any, are applicable human rights obligations of States to compensate for loss, damage and reparations?

(f) What responsibilities, if any, do African States have in relation to third parties, including international monopolies, multinational corporations and non-state actors operating on the continent, to ensure that international and regional treaties and laws on climate change are respected, protected, promoted and implemented?

(g) What, if any, is the nature of the obligations on African States to cooperate with other states especially historical emitters to limit global warming to below the 1.5°C threshold, to avert an existential climate crisis for present and future generations on the continent?

Further reading:
For more information on the advisory opinion request, see this post by Yusra Suedi.

Suggested citation:
African Court on Human and Peoples’ Rights, Request for an advisory opinion on the human rights obligations of African states in addressing the climate crisis, filed 2 May 2025 (pending).

Last updated:
23 May 2025

Categories
2025 Domestic court Emissions reductions/mitigation Ireland Just transition litigation Private and family life Renewable energy Victim status

Coolglass Wind Farm Limited v. An Bord Pleanála

Summary:
In a January 2025 judgment, the Irish High Court of Planning and Environment ruled in favor of an appeal challenging the refusal of planning permission for a wind farm development. In doing so, it applied EU law and the European Convention on Human Rights (ECHR), as interpreted in the 2024 KlimaSeniorinnen judgment by the European Court of Human Rights, to find that the relevant planning authority needed to have regard to Ireland’s renewable energy targets.

Facts of the case:
In a judgment delivered on 10 January 2025, the Irish High Court of Planning and Environment ruled on the refusal of planning permission for a wind farm development. The case raised an issue of statutory interpretation relating to the Irish Climate Action and Low Carbon Development Act 2015, as amended in 2021. Planning permission for the wind farm project sought by Coolglass Wind Farm Limited was refused by the responsible board (An Bord Pleanála, Ireland’s national independent planning body that decides appeals on planning decisions made by local authorities) because it was contrary to planning regulation and rules on sustainable development of the area. Coolglass appealed, arguing that the Board was failing to approve adequate planning applications to meet Ireland’s 2030 renewable energy targets in the Climate Action Plan 2024, and was thereby failing to comply with its obligations under section 15 of the Climate Action and Low Carbon Development Act 2015. Coolglass also argued that the board’s decision was incompatible with the ECHR and with Regulation (EU) 2022/2577 of 22 December 2022 laying down a framework to accelerate the deployment of renewable energy.

Findings:
The Court, in a ruling by Humphreys J., upheld the appeal by Coolglass. It held that the board had failed to exercise its powers in a manner that complied (as far as practicable) with Ireland’s climate objectives and policies, and that this failure also constituted a breach of duty under the European Convention on Human Rights, read in light of the KlimaSeniorinnen judgment, as well as a breach of EU law obligations.

On the human rights aspect of the case, the Court ruled that:

109. I agree with the applicant that one must conclude that art. 8 of the ECHR imposes a positive obligation on the State to put in place a legislative and administrative framework with respect to climate change designed to provide effective protection of human health and life, and a further positive obligation to apply that framework effectively in practice, and in a timely manner.
110. Ireland has a framework of course but (as discussed above under the heading of EU law conformity) it is clear that it is not being complied with. The latter failure, on the logic of Klimaseniorinnen, involves a breach of art. 8 of the ECHR.
111. The application of the framework in practice is crucial. As we know from the termination of pregnancy context (Case of A, B and C v. Ireland [GC], no. 25579/05, ECHR 2010 (https://hudoc.echr.coe.int/fre?i=001-102332)), the Strasbourg court takes a dim view of a situation where there are laws on the books but a failure to put in place practical arrangements to implement them.
112. The problem for the opposing parties here is firstly that an interpretation of s. 15(1) that allows the climate goals in legislation to fall by the wayside due to a failure by the board to exercise discretionary powers to override development plans is an interpretation that fails to conform with ECHR obligations contrary to s. 2 of the 2003 Act.
113. Secondly, the failure by the board to use its discretionary powers in that manner constitutes a failure to act consistently with ECHR obligations contrary to s. 3 of the 2003 Act.
114. The board rather weakly raises the defence that a body corporate doesn’t have locus standi to argue for the right to a private life in a climate-relevant sense under art. 8 of the ECHR. But that isn’t the point of course. Whether an individual applicant has standing in a hypothetical case or not doesn’t affect the interpretation of a statutory provision. The point being made is that the court should interpret the 2015 Act as amended in an ECHR-compatible manner. Such an interpretation supports the applicant’s proposition that s. 15(1) should be read as meaning what it says.
115. Thus the requirement to read legislation in an ECHR-compliant manner supports an interpretation of s. 15 that goes beyond the board’s have-regard-to interpretation and the State’s meaningful engagement interpretation. It reinforces the applicant’s case that the interpretation should ensure that ECHR obligations are complied with in practice, including compliance in practice with stated goals in relation to renewable energy infrastructure.

Overall, the Court ruled that:

116. Sometimes (although not as often as some people think) the language, context and purpose of a provision, or the requirements of EU law conformity or ECHR conformity, pull in different directions. This is not such a case.
117. On the contrary, all vectors of interpretation point strongly in the same direction – the need for an imperative reading of s. 15(1) in line with what it says, namely that the board and any other relevant body is required to act in conformity with the climate plans and objectives set out in the subsection unless it is impracticable to do so.
118. I therefore reject the watered-down interpretations of s. 15(1) offered by the opposing parties here and accept the applicant’s interpretation.

The Court granted Coolglass’s appeal and ordered that its planning application be remitted to An Bord Pleanála for renewed consideration.

Suggested citation:
Irish High Court of Planning and Environment, Coolglass Wind Farm Limited v. An Bord Pleanála [2025] IEHC 1, H.JR.2024.0001244, 10 January 2025.

Last updated:
4 February 2025

Categories
Elderly Emissions reductions/mitigation European Convention on Human Rights European Court of Human Rights Evidence Fair trial Gender / women-led Imminent risk Keywords Margin of appreciation Paris Agreement Private and family life Right to life Separation of powers Standing/admissibility Switzerland Victim status Vulnerability

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 argued, represents a failure to protect 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. In particular, they submitted evidence that their specific demographic (older women) is particularly impacted by heatwaves, citing health impacts and excess mortality risks. The respondent State, they argued, has failed to comply with its positive obligations to protect their rights, read in light of the environmental law principles of precaution and intergenerational equity.

The applicants also invoked 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). In this regard they argued that the domestic courts failed to take their case seriously and provide an effective remedy to contest the violation of their rights.

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. As a result, the applicants took their case to the European Court of Human Rights in Strasbourg.

This case was only the second climate change-related case to come to Strasbourg. Like the Duarte Agostinho case, this application raised 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, and the extent of the positive obligation to protect individuals from the risks to their life and health posed by climate change.

On 9 April 2024, in a historic ruling, the ECtHR declared this case admissible in part (for the association) and found that there had been violations of Articles 6(1) and 8 ECHR. In doing so, this case became the Court’s leading climate judgment, and a model for further climate-related cases in this system.

Third-party interventions:
There were an unusually large (for the ECtHR) number of third party interventions in this case: 23 in total, including eight States. The KlimaSeniorinnen association provided copies of all of the third-party interventions; these are available here. Some of the third-party interveners were also granted leave to intervene orally during the hearing before the Grand Chamber.

Grand Chamber hearing:
This was the first climate case heard by the European Court of Human Rights, followed immediately by the Carême v. France case. The Court has adjourned its examination of six other climate cases until the Grand Chamber has ruled in the three climate change cases before it, meaning that leading judgments clarifying the Convention obligations around cliamte change can be expected in these cases.

During the hearing, submissions were heard from the applicants, the respondent State, and two of the 23 total third-party interveners (the Government of Ireland & the European Network of National Human Rights Institutions (ENNHRI). A live summary of the hearing is available here.

General findings of the Court in its judgment of 9 April 2024:
The Court’s judgment is prefaced by a number of general findings that reflect its intended nature as a leading case. Noting the need to ensure effective protection of Convention rights without undermining the prohibition of actio popularis cases under the Convention system, the Court acknowledged that it had a role to play here, finding that “the current situation (…) involves compelling present‑day conditions, confirmed by scientific knowledge, which the Court cannot ignore in its role as a judicial body tasked with the enforcement of human rights.” At the same time, noting “the necessarily primary responsibility of the legislative and executive branches and the inherently collective nature of both the consequences and the challenges arising from the adverse effects of climate change”, it held that the issue of victim status here raised an issue of the separation of powers, requiring particular consideration. Noting the global and complex nature of climate change, it held that “the necessity of combating climate change involves various conflicts, the weighing‑up of which falls, as stated previously, within the democratic decision‑making processes, complemented by judicial oversight by the domestic courts and this Court.”

In light of this, and before assessing the case, the Court set out a number of general considerations relating to climate‑change cases. This includes questions of causation, including the finding that despite indirect causal links, “the essence of the relevant State duties in the context of climate change relates to the reduction of the risks of harm for individuals”, meaning that it could not apply “a strict conditio sine qua non requirement” to matters of causation. This section also includes issues of proof and evidence, and references the “evolution of scientific knowledge, social and political attitudes and legal standards concerning the necessity of protecting the environment”. Here the Court established that “there are sufficiently reliable indications that anthropogenic climate change exists, that it poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention, that States are aware of it and capable of taking measures to effectively address it, that the relevant risks are projected to be lower if the rise in temperature is limited to 1.5°C above pre-industrial levels and if action is taken urgently, and that current global mitigation efforts are not sufficient to meet the latter target” (para. 436). And, importantly, it discarded the “drop in the bucket” argument made by the respondent State, stating that “The relevant test does not require it to be shown that “but for” the failing or omission of the authorities the harm would not have occurred. Rather, what is important, and sufficient to engage the responsibility of the State, is that reasonable measures which the domestic authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm” (para. 444). It also stressed that there is no right to a healthy environment in the ECHR, but that it can and has nonetheless dealt with other environmental cases, reiterating its past approach that “the crucial element which must be present in determining whether, in the circumstances of a given case, an environmental harm has adversely affected one of the rights safeguarded by the Convention is the existence of a harmful effect on a person and not simply the general deterioration of the environment” (para. 446). It also noted that it is conscious of its subsidiary role and the direct democratic legitimation of national authorities to make decisions on climate policy, but that where State policy affects Convention rights, it has competence to intervene and “the Court’s competence in the context of climate-change litigation cannot, as a matter of principle, be excluded” (paras. 449-451).

The Court also set out the relevant principles for interpreting the ECHR, including the living instrument approach and the fact that while the Court “does not have the authority to ensure compliance with international treaties or obligations other than the Convention” — including the Paris Agreement — it has consistently noted that it will interpret the Convention in harmony with other international law.

Admissibility:
On 9 April 2024, the Court declared this case admissible in part. Under Article 34 ECHR, it used this judgment as an opportunity to create new standards on victim status specific to climate-related cases. In doing so, it set out the general standards on victim status, noting that it did not admit actio popularis cases and that the ECHR “does not permit individuals or groups of individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention” (para. 460). It noted that the notion of victim status must be applied flexibly, and that it’s distinct from locus standi, i.e. representative actions.

The Court then issued general considerations on victim status and locus standi in climate cases, noting that “there is cogent scientific evidence demonstrating that climate change has already contributed to an increase in morbidity and mortality, especially among certain more vulnerable groups, that it actually creates such effects and that, in the absence of resolute action by States, it risks progressing to the point of being irreversible and disastrous” (para. 478).

It also held that (para. 479): the critical issues around climate change “arise from failures to act, or inadequate action”, meaning omissions in legislative or regulatory frameworks that require a special approach to victim status. Importantly, the Court also clarified that its findings on victim status in the context of complaints about omissions in climate policy “is without prejudice to the determination of victim status in circumstances where complaints by individuals concern alleged violations arising from a specific individual loss or damage already suffered by them” (para. 480), meaning that the special approach spelled out for mitigation cases need not preclude other types of claims. However, it held, in the context of climate change, “a potentially a huge number of persons could claim victim status under the Convention”, which “would not sit well with the exclusion of actio popularis from the Convention mechanism and the effective functioning of the right of individual application” (para. 483). The Court clarified the difficult situation in which it found itself, between “disrupting national constitutional principles and the separation of powers” and depriving individuals affected in their rights from “any judicial recourse before the Court”, noting the “distinct representational disadvantage” of those most affected (para. 484). It then, in para 487 of the judgment, spelled out the criteria for individual victim status in climate cases. These are:

  • (a)  “a high intensity of exposure to the adverse effects of climate change”, i.e. a significant level and severity of risk of adverse consequences; and
  • (b) “a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm.”

Given that there is no actio popularis under the Convention, the Court held, “the threshold for fulfilling these criteria is especially high”, and will depend on specific vulnerabilities and local circumstances as well as including considerations relating to: “the nature and scope of the applicant’s Convention complaint, the actuality/remoteness and/or probability of the adverse effects of climate change in time, the specific impact on the applicant’s life, health or well-being, the magnitude and duration of the harmful effects, the scope of the risk (localised or general), and the nature of the applicant’s vulnerability” (para. 488).

As to the standing of associations, the Court generally reiterated its previous Gorraiz Lizarraga and Others judgment, which had allowed representative standing for an organisation. It noted that recourse to collective bodies like associations can make defense of one’s interests more accessible in certain circumstances, including the context of climate change, noting that this general principle was also reflected in the Aarhus Convention. The Court then set out some general principles on organizations’ victim status versus their standing as representatives of victims. In light of the former, it reiterated past case-law finding that “an association cannot rely on health considerations or nuisances and problems associated with climate change which can only be encountered by natural persons”. But it also recognized that understandings of the importance of litigation by associations had evolved, and that climate cases are complex and demanding and affect many individuals (para. 498). In addition, “the special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context (…), speak in favour of recognising the standing of associations before the Court in climate-change cases” (para. 499). However, this should not mean allowing an actio popularis: a test for associations’ standing is required. To design its test, the Court had regard to the Aarhus Convention while also noting key difference between its approach and that under Aarhus.

The test it devised for associations looks as follows (§ 502): associations will have locus standi to bring climate cases about impacts on human lives and health where they:

  • (a) have been lawfully established in the relevant jurisdiction, or have standing to act there;
  • (b) pursue, under their statutory objectives, a dedicated purpose of defending the human rights of their members or other affected individuals in the jurisdiction concerned, and
  • (c) are genuinely qualified and representative to act on behalf of affected individuals in the jurisdiction who are subject to specific threats on their lives, health or well-being from climate change.

The Court also noted that it would consider additional factors, like the purpose for which the association was established, its non-profit character, the nature and extent of its activities, its membership and representativeness, its principles and transparency of governance and whether standing is in the interests of the proper administration of justice.

There was no need, however, to show that those on whose behalf the case has been brought would themselves have met the climate-specific victim-status requirements for individuals as set out earlier in the judgment.

Because the Court joined its actual analysis of the victim status requirement to the merits of the case, this is discussed in the following section.

Merits:
In setting out general principles on the applicability of Article 2 ECHR (the right to life), the Court noted past cases where the right was applicable to situations where there is a threat to life, but “where the person concerned did not die”. Although noting the evidence on vulnerable populations, the Court reiterated that the appropriate test here is one of whether there is a “real and imminent” risk to life, meaning that the risk must be serious, genuine, sufficiently ascertainable and in physical proximity. It then tailored this last aspect to the nature of climate change, stating that it would suffice to show “an element of material and temporal proximity of the threat to the harm complained of by the applicant”. This means that, provided an applicant has victim status, “a serious risk of a significant decline in a person’s life expectancy owing to climate change ought also to trigger the applicability of Article 2.”

As for Article 8 ECHR, the Court stated generally that it was necessary to show an “actual interference” with the right, meaning that there needs to be “a direct and immediate link between the alleged environmental harm and the applicant’s private or family life or home”, and a certain level of severity. Drawing on its past environmental case-law, the Court went on to establish that “Article 8 must be seen as encompassing a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life” (para. 519).

The Court then considered the applicability of Art. 8 ECHR to the case before it. As concerned the applicant association, it found that it met the criteria for standing by associations as set out earlier in the judgment, describing the KlimaSeniorinnen association as “a vehicle of collective recourse aimed at defending the rights and interests of individuals against the threats of climate change in the respondent State”. The complaints pursued by the association on behalf of its members, it held, fall within the scope of Article 8. The association accordingly had locus standi, and Article 8 was declared applicable to its complaint.

On applicants 2-5 (the individual applicants), the Court held that the threshold for meeting its two criteria (high-intensity exposure and a pressing need to ensure protection) was high. It was not enough to show that they were particularly vulnerable to the effects of climate change. The crucial paragraph of the judgment here is para. 533: “while it may be accepted that heatwaves affected the applicants’ quality of life, it is not apparent from the available materials that they were exposed to the adverse effects of climate change, or were at risk of being exposed at any relevant point in the future, with a degree of intensity giving rise to a pressing need to ensure their individual protection (…). It cannot be said that the applicants suffered from any critical medical condition whose possible aggravation linked to heatwaves could not be alleviated by the adaptation measures available in Switzerland or by means of reasonable measures of personal adaptation”. Their complaint was accordingly declared inadmissible.

On the claims under Article 2, the Court held that it was not necessary to analyze this further, noting that its analysis would “have regard to the principles developed also under Article 2, which to a very large extent are similar to those under Article 8 (…) and which, when seen together, provide a useful basis for defining the overall approach to be applied in the climate-change context under both provisions.”

The Court then recapitulated more general principles now on the merits proper. It held that the Article 2 and 8 positive obligations are generally quite similar, requiring the State:

  • (a)  to put in place an adequate legislative and administrative framework and govern the licensing, setting-up, operation, security and supervision of the activity;
  • (b) to apply that framework effectively in practice;
  • (c) to remain within their margin of appreciation;
  • (d) to exercise due diligence and consider all competing interests;
  • (f) to provide access to essential information enabling individuals to assess risks to their health and lives;

Noting also that “the scope of the positive obligations imputable to the State in the particular circumstances will depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation”.

In reviewing the domestic decision-making process, the Court has particular regard to the following considerations:

  • (a) Its subsidiary role;
  • (b) The need to consider all of the procedural aspects;
  • (c) The presence of appropriate investigations and studies;
  • (d) The public’s access to the conclusions of the relevant studies; and
  • (e) Whether or not the individuals concerned had an opportunity to protect their interests in the environmental decision-making process, i.e. participate effectively.

Turning to States’ positive obligations relation to climate, it first considered the State margin of appreciation. Having regard to the scientific evidence, the Court considered it justified to give climate protection considerable weight against competing considerations.

Regarding the margin of appreciation it distinguished between the scope of the margin as regards (i) the State’s commitment combating climate change and setting objectives in this respect, and (ii) the choice of means designed to achieve those objectives. The margin is more narrow with regard to the former. For the latter aspect, i.e. the choice of means, States have a wide margin of appreciation.

As to the content of States’ positive obligations under Article 8, this is primarily a regulatory obligation. This means that, in line with their international commitments, States need to put in place regulations and measures to prevent climate change. The global aims in the Paris Agreement are not enough; and “must inform the formulation of domestic policies, it is obvious that the said aims cannot of themselves suffice as a criterion for any assessment of Convention compliance of individual Contracting Parties to the Convention in this area. This is because “each individual State is called upon to define its own adequate pathway for reaching carbon neutrality, depending on the sources and levels of emissions and all other relevant factors within its jurisdiction.”

This means that Article 8 ECHR “requires that each Contracting State undertake measures for 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” (ca. 2050). To avoid a disproportionate burden on future generations, this means immediate action needs to be taken and adequate intermediate reduction goals must be set for the interim period. The Court spelled out that this must be part of a binding regulatory framework at the national level, followed by adequate implementation, and that “the relevant targets and timelines must form an integral part of the domestic regulatory framework, as a basis for general and sectoral mitigation measures.”

In para. 550, the Court set out the criteria it would use to decide whether a State has remained within its margin of appreciation, namely whether the authorities 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 (…);
  • (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.”

These mitigation measures, it added, must be supplemented by adaptation measures aimed at alleviating the most severe or imminent consequences of climate change, taking into account particular protection needs.

The Court also set out procedural safeguards, namely

  • (a) The publicity of relevant information; and
  • (b) The availability of procedures to take into account the views of the public, and in particular the interests of those affected.

Applying these principles to the case before it, the Court held that it could “take into account the overall situation in the respondent State”, including relevant information that came to light after the domestic proceedings, but that here, given an ongoing domestic legislative process, its assessment was limited to examining the domestic legislation as it stood on the date of the (internal) adoption of the judgment, which was 14 February 2024.

The Court noted that the currently existing 2011 CO2 Act (in force since 2013) required that emissions reductions of 20% by 2020 compared with 1990 levels. However, as far back as August 2009, the Swiss Federal Council had found that the scientific evidence under a 2-2.4°C warming limit required a reduction in global emissions of at least 50-85% by 2050 compared with 1990 levels. Industrialised countries (like Switzerland) had to reduce their emissions by 25-40% by 2020 compared to 1990 levels. for the higher 1.5°C limit, emissions would have to decline continuously, and the pathway 20% by 2020 pathway was insufficient to achieve that objective.

As the Government acknowledged, domestic assessments found that even the reduction target for 2020 had been missed. Between 2013 and 2020, Switzerland reduced its emissions by around 11% compared with 1990 levels, indicating the insufficiency of the authorities’ past action to take the necessary measures to address climate change.

A proposed revision of the CO2 Act for 2020-2030 proposed an overall reduction of 50% of emissions, including a domestic reduction of 30% by 2030 and measures to be taken abroad (“external emissions”). This proposal was rejected in a popular referendum in June 2021. Here the Court held that, “irrespective of the way in which the legislative process is organised from the domestic constitutional point of view”, there was a legislative lacuna, pointing to a failure on the part of the respondent State to fulfil its positive obligations under Article 8 to devise a regulatory framework setting the requisite objectives and goals.

Reflecting the updated Swiss NDC, the Climate Act was enacted, and envisages the principle of a net‑zero emissions target by 2050, but several lacunae remain, and “the Court has difficulty accepting that the mere legislative commitment to adopt the concrete measures “in good time” (…) satisfies the State’s duty”, especially because “the introduction of that new legislation is not sufficient to remedy the shortcomings identified in the legal framework applicable so far.”

Currently, the Swiss goal used more emissions than even a globally equal “per capita emissions” approach would entitle it to use.

The Court rejected the Government’s argument that there was no established methodology to determine a country’s carbon budget, and noted that an NDC under the Paris Agreement was not an appropriate substitute. The Court approved of the reasoning of the German Federal Constitutional Court in Neubauer, where it rejected the argument that it was impossible to determine the national carbon budget by emphasizing the principle of common but differentiated responsibilities under the UNFCCC and the Paris Agreement.

Thus, “while acknowledging that the measures and methods determining the details of the State’s climate policy fall within its wide margin of appreciation, in the absence of any domestic measure attempting to quantify the respondent State’s remaining carbon budget, the Court has difficulty accepting that the State could be regarded as complying effectively with its regulatory obligation under Article 8” (para. 572). This meant that there had been a violation of Article 8 of the Convention (by a majority of 16-1).

On the issue of Article 6 ECHR, concerning the right of access to a court, the Court held that the issue of victim status should again be joined to the merits, and the Court again dove in with general principles, finding that it did not per se need to tailor these principles to the nature of climate change cases.

Examining these principles in the case before it, the Court held that “it cannot be said that the individual applicants’ claim was frivolous or vexatious or otherwise lacking in foundation in terms of the relevant domestic law (…). The Court is unable to agree with the finding of the FSC that the individual applicants’ claim could not be considered arguable for the purposes of Article 6 § 1 of the Convention” (para. 618). It went on to find that interests defended by the association meant that the “dispute” raised by it had a direct and sufficient link to its members’ rights. Finding that Article 6 (1) applied to the complaint of the applicant association, the Court also considered it to have victim status.

For the individual applicants, however, the Court found that the dispute they had brought concerning the failure to effectively implement mitigation measures was not directly decisive for their specific rights. They had not shown that there was a sufficiently imminent and certain effect on their individual rights, and this part of their complaint was inadmissible.

For the association, among other things, the Court rejected the domestic courts’ findings that there was still some time to prevent global warming from reaching the critical limit, and noted that they “did not engage seriously or at all with the action brought by the applicant association.” There had accordingly been a violation of Art. 6(1) ECHR, with the Court emphasizing “the key role which domestic courts have played and will play in climate-change litigation”.

The applicants also complained that they had not had access to an effective remedy within the meaning of Article 13 of the Convention. Here the Court noted that Article 6 is a lex specialis to Article 13, the latter being absorbed by the more stringent requirements of Article 6, so there was no separate issue in its regard.

Remedies:
The individual applicants had made requests for just satisfaction for damage under Article 41 ECHR, but the organisation did not, so no award was made. The Court did award costs and expenses to the amount of EUR 80,000.

The applicants had also made an Art. 46 claim for a general measures order. Here the Court noted that it is primarily for the State to choose, under the supervision by the Committee of Ministers, the means to be used domestically to discharge its obligation to comply with the Court’s judgment, as long as the means are compatible with the conclusions and spirit of that judgment. The Court went on to hold that, “having regard to the complexity and the nature of the issues involved, the Court is unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment.” It noted the State’s broad margin of appreciation choose the means to discharge its Convention obligations, and found that the State was thus better placed than the Court to decide which specific measures to take.

Separate opinions:
A separate opinion by Judge Eicke is annexed to this judgment. He disagreed with the majority in several points, especially victim status and the merits of Art. 8. He presented his view as a disagreement of a “fundamental nature” that “goes to the very heart of the role of the Court within the Convention system and, more generally, the role of a court in the context of the unique and unprecedented challenges posed to humanity” because the majority had exceeded “the permissible limits of evolutive interpretation”.

According to Judge Eicke, the majority judgment creates a new right to “effective protection by the State authorities from serious adverse effects on their life, health, well‑being and quality of life arising from the harmful effects and risks caused by climate change”. While acknowledging the seriousness of the threat of climate change, and noting “(a) the absolute need for urgent action and (b) the sheer complexity of the challenges climate change (and the other aspects of the “triple planetary crisis”) pose (geo-)politically, practically, logistically as well as legal,” he argues that the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances (Article 2(2) Paris Agreement) is “difficult to reconcile (if not wholly inconsistent) with the Court’s primary role of ensuring observance of a common minimum standard of protection applicable equally to all Contracting Parties”.

On victim status, Eicke argues that “there was, in fact, no dispute and no uncertainty about the “victim” status of the individual applicants in relation to the Article 6 § 1 complaint in this case; and therefore no need to join that question to the merits”. He sets out and adheres to the previously established case-law on victim status, refusing to join the majority in creating a new approach tailored to climate cases and arguing that exceptions should only be possible where individual applications document victim status are not “ever” likely to be possible. He argues that the judgment creates an actio popularis.

Under Articles 2 and 8, Eicke argues that while it would have been possible to find a procedural violation of Articles 2 or 8, “the substantive violation of Article 8 which the majority seeks to construct from this starting premise has no basis either in the text of the Convention nor in any of the Court’s case-law.” He considers that “the Court would already have achieved much if it had focussed on a violation of Article 6 of the Convention and, at a push, a procedural violation of Article 8 relating in particular to (…) the right of access to court and of access to information”. He accuses the majority of trying “to run before it could walk”, and “giving (false) hope that litigation and the courts can provide “the answer” without there being, in effect, any prospect of litigation (especially before this Court) accelerating the taking of the necessary measures towards the fight against anthropogenic climate change”, and mentions the risk that this judgment will distract from other efforts to tackle climate change.

Implementation measures taken:

N/A

Date of decision:
It was announced on 26 March 2024 that the Grand Chamber would issue its judgment in this case, along with the two other climate cases pending before the Grand Chamber, in a hearing to be held on 9 April 2024 at 10:30 a.m. The judgment and a summary were made available on the Court’s HUDOC database immediately after the hearing.

Type of Forum:
Regional

Status of case:
This case was communicated to the respondent State, Switzerland, on 17 March 2021. On 26 April 2022, a Chamber of the Court relinquished jurisdiction in favour of the Grand Chamber, held a public hearing in this case on 29 March 2023. A webcast of the hearing is available here. On 9 April 2024, the Court issued its judgment in the case.

Suggested case citation:
ECtHR, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, no. 53600/20, judgment (Grand Chamber) of 9 April 2024.

Links:

Webcast of the hearing:
To watch a webcast recording of the public hearing in this case, which was held before the Grand Chamber of the European Court of Human Rights on 29 March 2023, click here (available in French and English).

Last updated:
9 April 2024

Categories
Austria Belgium Bulgaria Children and young people Croatia Cyprus Czechia Denmark Emissions reductions/mitigation Estonia European Convention on Human Rights European Court of Human Rights Extraterritorial obligations 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 Standing/admissibility Sweden Switzerland The Netherlands The United Kingdom Turkey Ukraine Victim status

Duarte Agostinho et al. v. Austria et al. (“Portuguese Children’s Case”)

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 was the first climate case to come before the ECtHR. In their application, the six applicants, aged between 8 and 21 at the time, argued that the 33 respondent States 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 claimed that their right to life (Art. 2 ECHR) was being threatened by the effects of climate change in their home State of Portugal, including through the harms caused by forest fires. Moreover, they claimed that their right to respect for their private and family life under Art. 8 ECHR was being threatened by heatwaves that forced them to spend more time indoors. They also noted 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 alleged 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 was 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 were 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.

On 9 April 2024, the Court declared this case inadmissible on jurisdiction and non-exhaustion grounds.

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

Relinquishment:
On 29 June 2022, the 7-judge Chamber to which the case had originally been allocated relinquished jurisdiction over it in favour of the Court’s 17-judge Grand Chamber. Relinquishment is possible where a case either (a) raises a serious question affecting the interpretation of the Convention or its Protocols, or (b) might lead to a result inconsistent with the Court’s case-law (Rule 72, paras 1-2 of the Rules of Court).

During the course of the proceedings, the complaint against Ukraine was withdrawn by the applicants. The Russian Federation ceased to be a Council of Europe Member State during the course of the proceedings, but this was not an obstacle to considering the application as concerns anything taking place before the end of its membership (on 16 September 2022).

In February 2023, the Court announced that it would hold a public Grand Chamber hearing in this case, along with two other climate cases pending before it (Carême v. France and KlimaSeniorinnen and Others v. Switzerland). It announced that it would adjourn the remaining climate cases pending before it in the meantime. The oral stage in these three cases was staggered: Carême and KlimaSeniorinnen were heard on 29 March 2023, while the hearing in Duarte Agostinho was heard by the same composition of the Grand Chamber on 27 September 2023.

Grand Chamber hearing:
A hearing in this case was held on 27 September 2023. A webcast of the hearing is available here.

During the hearing, the respondent States pooled their submissions to a large extent, with additional arguments from the Netherlands, Portugal, and Turkiye. Third-party interveners also received leave to appear during the oral hearing, namely the Council of Europe Commissioner for Human Rights, Dunja Mijatovic, the EU’s European Commission, and the European Network of National Human Rights Institutions (ENNHRI). The substance of the hearing focused largely on admissibility issues, namely victim status, the (non-)exhaustion of domestic remedies and the extraterritoriality of Convention obligations. The judges also asked a number of questions to the parties before retiring to consider the admissibility and merits of the case.

Admissibility:
From the blog post on the case by Ayyoub (Hazhar) Jamali available on our blog

After months of anticipation, the ECtHR delivered its judgment on 9 April 2024. The Court found the case inadmissible on two key grounds. Firstly, it ruled out jurisdiction regarding non-territorial states, narrowing the scope of accountability in this complex legal landscape to applicants’ home states. Secondly, it dismissed the application against Portugal due to a lack of exhaustion of domestic remedies.

Extraterritorial Jurisdiction
The Court acknowledged its jurisdiction concerning Portugal but denied it concerning other non-territorial states. It recognized that under Article 1 of the Convention, jurisdiction primarily pertains to territorial boundaries, implying that individuals can only claim Convention violations against the territorial state where they reside. However, the Court reiterated that the Convention’s reach can extend beyond national borders in two main forms: when a state exercises effective control over an area (spatial concept of jurisdiction, or jurisdiction ratione loci), and when there is state agent authority or control over individuals (personal concept of jurisdiction, or jurisdiction ratione personae) (para 170). In the present case, as neither of these two criteria appeared applicable, the Court denied jurisdiction within the meaning of Article 1 ECHR.

Furthermore, the Court rejected the applicant’s argument that there are ‘exceptional circumstances’ and ‘special features’ for establishing the respondent states’ extraterritorial jurisdiction over the applicants within the specific context of climate change. It emphasized that determining whether the ECHR applies extraterritorially requires examining whether ‘exceptional circumstances’ exist, indicating that the state concerned is exercising extraterritorial jurisdiction over the applicants. This primarily involves exploring the nature of the link between the applicants and the respondent state.

The Court acknowledged that states have ultimate control over public and private activities within their territories that produce greenhouse gas emissions. It noted their international-law commitments, particularly those outlined in the Paris Agreement, which states have incorporated into their domestic laws and policy documents, as well as their Nationally Determined Contributions (NDC) under the Paris Agreement (para 192). Furthermore, the Court recognized the complex and multi-layered causal relationship between activities within a state’s territory that produce greenhouse gas emissions and their adverse impacts on the rights and well-being of individuals residing outside its borders (para 193). It emphasised that while climate change is a global phenomenon, each state bears responsibility for addressing it. However, the Court concluded that these considerations alone cannot justify creating a novel ground for extraterritorial jurisdiction through judicial interpretation or expanding existing ones (para 195). It emphasised that the ECHR protection system is primarily based on principles of territorial jurisdiction and subsidiarity.

The Court further denied the applicants’ claim that bringing a case against Portugal alone would be ineffective and that they had no other means of holding the respondent states accountable for the impact of climate change on their Convention rights. It distinguished between jurisdiction and responsibility, which constitutes a separate matter to be examined in relation to the merit of the complaint (para 202).

The Court further rejected the applicants’ claim concerning the reach of the Convention outside of national boundaries by their reliance on a test of ‘control over the applicants’ Convention interests’. It reasoned that, according to its established case-law, extraterritorial jurisdiction as conceived under Article 1 ECHR requires control over the person him- or herself rather than the person’s interests as such (para 204-206). It highlighted that, except for specific cases under Article 2 concerning intentional deprivation of life by state agents, there is no precedent for a criterion like ‘control over Convention interests’ as a basis for extraterritorial jurisdiction (paragraph 205). Consequently, the Court argued that adopting such an extension would represent a significant departure from established principles under Article 1.

The Court stated that otherwise, and given the multilateral dimension of climate change, almost anyone adversely affected by climate change anywhere in the world could be brought within the jurisdiction of any Contracting Party for the purposes of Article 1 ECHR in relation to that Party’s actions or omissions to tackle climate change. It also rejected the suggestion that such an extension of jurisdiction could be limited to the Convention’s legal space. It reasoned that, 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 (para 206).

Moreover, the Court acknowledged the significance of developments in international law, particularly with regards to the interpretations provided by bodies such as the Inter-American Court and the Committee on the Rights of the Child (CRC). It recognised the relevance of these interpretations in shaping the understanding of jurisdiction within the context of human rights treaties. However, the Court noted that these bodies had adopted distinct notions of jurisdiction, which had not been recognised in its own case-law. While the Court considered the insights provided by these international instruments and bodies, it concluded that they did not provide sufficient grounds for extending the extraterritorial jurisdiction of respondent states under the Convention, particularly as proposed by the applicants (para 209-210). Therefore, while remaining attentive to legal developments and global responses to issues such as climate change, the Court found no basis within the Convention for expanding extraterritorial jurisdiction as advocated by the applicants.

In conclusion, the Court found no grounds in the Convention for extending the respondent states’ extraterritorial jurisdiction through judicial interpretation.

Exhaustion of Domestic Remedies
Regarding Portugal, the applicants’ home state, there was no extraterritoriality issue. Here the Court examined whether effective remedies existed within the Portuguese legal system that the applicants were required to use under the exhaustion of domestic remedies rule. Despite the applicants’ argument that broad constitutional provisions alone could not provide effective and certain remedies, the Court disagreed, highlighting various remedies available in Portugal. These included, for example, constitutional recognition of the right to a healthy environment, actio popularis claims for environmental protection, etc (para 217-223). The Court emphasised the importance of affording domestic courts the opportunity to address issues before having recourse to international remedies. Consequently, the complaint against Portugal was found inadmissible. The Court also rejected the suggestion that it should rule on the issue of climate change before domestic courts had the opportunity to do so, reaffirming the principle of subsidiarity and the role of domestic jurisdictions in adjudicating such matters (para 228).

Victim Status
The Court found it challenging to determine whether the applicants met the criteria for victim status as set out on the same day in the KlimaSeniorinnen judgment against Switzerland. The lack of clarity is attributed, in part, to the applicants’ failure to exhaust domestic remedies. The Court found that, in any event, the application was inadmissible for the reasons previously outlined. Therefore, the Court declined to examine further whether the applicants could claim victim status (para 229-230).

Date:
9 April 2024

Type of Forum:
Regional

Status of case:
Communicated by the Court on 30 November 2020. Relinquished to the Grand Chamber on 29 June 2022. Grand Chamber hearing held on 27 September 2023. Decision announced at a Grand Chamber hearing held on 9 April 2024, along with rulings in the two other climate cases pending before the Grand Chamber.

Suggested case citation:
ECtHR, Duarte Agostinho and Others v. Portugal and 32 Other Member States, no. 39371/20, decision (Grand Chamber) of 9 April 2024.

Links:
For more information on this case, see the following links.

  • For more background on the case and profiles on the applicants, click here: https://youth4climatejustice.org/
  • For all of the case documents, including the submissions from the respondent States and the third-party interveners, see here.
  • For analyses of the Grand Chamber hearing, see this post on our own blog by Viktoriya Gurash, or this post on Verfassungsblog by Corina Heri.
  • For the judgment, click here.
  • For the Court’s Q&A on the three climate cases, click here.

Last updated:
9 April 2024

Categories
2024 Emissions reductions/mitigation European Court of Human Rights France Private and family life Right to life Standing/admissibility Victim status

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 was the second climate case to reach the Court’s Grand Chamber, after the Klimaseniorinnen application. The case was lodged on 28 January 2021, and the Grand Chamber held a public hearing in this case on 29 March 2023, making it the second climate case to be heard by the Court (after KlimaSeniorinnen).

Before the Court, the applicant argued that France’s insufficient climate change mitigation measures violated his rights to life (Article 2 ECHR) and to respect for private and family life (Article 8 ECHR). 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.

The Court’s press release on this case can be found here.

Date of decision:
It was announced on 26 March 2024 that the Grand Chamber would issue its judgment in this case, along with the two other climate cases pending before the Grand Chamber, in a hearing on 9 April 2024 at 10:30 a.m. The judgment and a summary were made available on the Court’s HUDOC database immediately after the hearing.

The Court’s findings on the admissibility:
From the summary prepared by Viktoriya Gurash on the day of the Grand Chamber decision in this case.

Today, on 9 April 2024, the European Court of Human Rights issued a Grand Chamber decision in this case, unanimously declaring the applicant’s complaints under Articles 2 and 8 of the European Convention on Human Rights inadmissible ratione personae.

The Court, first, noted that its assessment of Mr Carême’s victim status as a physical person in the climate context will be based on the criteria set out in Verein KlimaSeniorinnen Schweiz and Others v Switzerland, decided on the same day, which includes that: the applicant must be subject to a high intensity of exposure to the adverse effects of climate change; and 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 of KlimaSeniorinnen). The Court emphasised that the threshold for fulfilling these criteria is especially high in view of the exclusion of actio popularis cases under the Convention (para 488 of KlimaSeniorinnen).

Using this framework, in Carême, the ECtHR first assessed the reasons adduced by the domestic courts, specifically the Conseil d’État, when rejecting Mr Carême’s standing. Before the national authorities, the applicant argued that the house in which he resided at the time was located close to the coastline and that according to some predictions it would be flooded by 2040, taking into account the effects of climate change. The Conseil d’État found that the area of the municipality of Grande-Synthe was at a very high level of exposure to high risks of flooding and severe drought with the effect not only of a reduction and degradation of water resources, but also significant damage to built-up areas, given the geological characteristics of the soil. However, the Conseil d’État ruled that Mr Carême did not have an interest in bringing proceedings on the basis of the mere fact that his current residence was located in an area likely to be subject to flooding by 2040. The ECtHR adhered to this argument, reasoning that the risk relating to climate change affecting the applicant is of hypothetical nature.

The crucial factor leading to the Court’s decision as regards the applicant’s victim status is that he no longer has any relevant links with Grande-Synthe because he no longer resides in France, nor does he own or rent any property in Grande-Synthe. The Court noted that in his initial application the applicant indicated an address in Grande-Synthe, although at that time he no longer resided in that municipality but in Brussels. In view of this, the Court found moot Mr Carême’s argument that his residence in Grande-Synthe was at a future risk of flooding and that the current situation prevented him from envisaging himself serenely in his home.

The Court held that the applicant had no right to lodge a complaint under Article 34 of the Convention on behalf of the municipality of Grande-Synthe because, in view of the ECtHR’s settled case law, decentralised authorities that exercise public functions are considered to be ‘governmental organisations’ that have no standing. In addition, the Court highlighted that the interests of the residents of Grande-Synthe have, in any event, been defended by their municipality before the Conseil d’État in accordance with national law.

Furthermore, as regards the applicant’s claim that he had developed allergic asthma making him particularly sensitive to air pollution caused by climate change, the Court found that since this issue was not raised in the initial application, it constitutes a new and distinct complaint and falls outside the scope of this case.

Further reading:

  • For a comment on this case, see Marta Torre-Schaub’s post on Verfassungsblog.
  • For the judgment, click here.
  • For the Court’s Q&A on the three climate cases, click here.

Webcast of the hearing:
To watch a webcast recording of the public hearing in this case, which was held before the Grand Chamber of the European Court of Human Rights on 29 March 2023, click here (available in French and English).

Suggested citation:
ECtHR, Carême v. France, no. 7189/21, decision (Grand Chamber) of 9 April 2024

Last updated:
9 April 2024

Categories
2023 Biodiversity Children and young people Deforestation Domestic court Emissions reductions/mitigation Farming Indigenous peoples' rights Loss & damage Public trust doctrine Right to a healthy environment Sea-level rise Separation of powers Standing/admissibility United States of America Victim status Vulnerability

Navahine F., a Minor v. Dept. of Transportation of Hawai’i et al.

Summary:
In January 2022, fourteen young people filed suit against the Department of Transportation of the US state of Hawai’i (HDOT), its Director, the state’s Governor, and the State itself. In Hawai’i Circuit Court, they alleged that the state’s transportation system violated the Hawai‘ian Constitution’s public trust doctrine and the right to a clean and healthful environment that it enshrines. The plaintiffs argued that the state and its authorities had “engaged in an ongoing pattern and practice of promoting, funding, and implementing transportation projects that lock in and escalate the use of fossil fuels, rather than projects that mitigate and reduce emissions”. Arguing that Hawai’i was the most carbon-dependent state in the nation, they sought declaratory and injunctive relief. They made a variety of arguments about the destruction of the Hawai’ian environment, coral reefs, native species of plants and marine life, and beaches; about their health and well-being, including about climate anxiety and about existing health conditions that are aggravated by the effects of climate change; about flooding and its impact on their ability to go to school; about water and food security, including impacts on traditional food sources, traditional and indigenous ways of life and culture; about wildfires; and about climate anxiety.

Claims made:
The plaintiffs note that Article XI, section 1 of the Hawai’i Constitution requires Defendants “[f]or the benefit of present and future generations,” to “conserve and protect Hawai’i’s natural beauty and all natural resources.” Article XI, section 1 further declares that “[a]ll public natural resources are held in trust by the State for the benefit of the people.” The Constitution also explicitly recognizes the right to a clean and healthful environment. Noting the special vulnerability of Hawai’i to climate-related ecological damage, including from sea-level rise, and the disproportionate harm to children and youth, including the lifetime exposure disparities concerning extreme events such as heat waves, wildfires, crop failures, droughts, and floods, they allege that the state of Hawai’i, through its Department of Transportation, has “systematically failed to exercise its statutory and constitutional authority and duty to implement Hawai’i’s climate change mitigation goals and to plan for and ensure construction and operation of a multimodal, electrified transportation system that reduces vehicle miles traveled and greenhouse gas emissions, and helps to eliminate Hawai’i’s dependence on imported fossil fuels”.

Ruling on Motion to Dismiss:
On 6 April 2023, the First Circuit Court rejected the respondent’s motion to dismiss the case for failure to state a claim. The state had argued that the public trust doctrine did not apply to the climate, “because climate is not air, water, land, minerals, energy resource or some other “localized” natural resource.” It had also argued that any efforts by the state would not have an impact on climate change given the scale of the problem.

The Court held in this regard that, in any event, the state as trustee had an obligation to keep its assets, i.e. its trust property, from falling into disrepair. It thereby rejected the argument that climate change was “too big a problem” and the idea that the state had no obligation to reasonably monitor and maintain its natural resources by reducing greenhouse gas emissions and planning alternatives to fossil-fuel heavy means of transportation. The Court also recognized that “the alleged harms are not hypothetical or only in the future. They are current, ongoing, and getting worse.”

On the argument that the applicants did not have a sufficient interest in the case, the Court held that the plaintiffs “stand to inherit a world with severe climate change and the resulting damage to our natural resources. This includes rising temperatures, sea level rise, coastal erosion, flooding, ocean warming and acidification with severe impacts on marine life, and more frequent and extreme droughts and storms. Destruction of the environment is a concrete interests (sic).”

Finding that arguments based on the political question doctrine were premature in this case, and citing case-law finding that this doctrine does not bar claim based on public trust duties, the Court denied the motion to dismiss the case.

Trial date set:
It was announced in August 2023 that trial dates for this case had been scheduled for 24 June-12 July 2024 at the Environmental Court of the First Circuit for Hawai’i. This would make this only the second-ever constitutional rights climate case to go to trial in the United States, after the Held and others v. Montana case. The case will be heard by First Circuit Judge John Tonaki.

Settlement Agreement:
On 20 June 2024, Hawai’i officials announced a groundbreaking Settlement Agreement with plaintiffs, marking a significant milestone. The Court approved the historic Navahine Agreement as fair and in the best interests of the youth plaintiffs. This landmark Agreement upholds children’s constitutional rights to a climate capable of sustaining life and mandates transformative changes in Hawai’i’s transportation system.

The Agreement emphasises HDOT’s responsibility to preserve Hawai’i’s public trust resources and ensure a clean and healthy environment for all residents. By 2045, HDOT is committed to achieving zero emissions across all modes of transportation, including ground, sea, and interisland air travel. The Agreement also includes numerous provisions for immediate and ongoing action by HDOT, such as establishing a Greenhouse Gas Reduction Plan, creating designated units and roles within HDOT, forming a youth council, improving transportation infrastructure budgeting processes, and making immediate, ambitious investments in clean transportation infrastructure. The Court will retain jurisdiction over the agreement until 2045 to oversee compliance with its terms.

This Settlement Agreement sets a precedent as the first of its kind, where government defendants collaborate with youth plaintiffs to address constitutional climate concerns. It commits to the systemic decarbonization of Hawai’i’s transportation sector, aiming to significantly reduce greenhouse gas emissions and lessen dependence on fossil fuels.

Further information:
For the ruling of the First Circuit Court, see here. For the text of Settlement Agreement, see here.

Suggested citation:
First Circuit Court of the State of Hawai’i, Navahine F., a Minor v. Dept. of Transportation et al., Civ. No. 1CCV-22-0000631, ruling of 6 April 2023.

Last updated:
24 June 2024

Categories
2023 Domestic court Emissions reductions/mitigation Margin of appreciation Paris Agreement Separation of powers Spain Standing/admissibility Victim status

Greenpeace Spain et al. v. Spain

Summary:
In 2020, three environmental NGOs (Greenpeace, Ecologistas en Acción and Oxfam Intermón) challenged the level of ambition of the Spanish government’s domestic greenhouse gas emissions reductions targets in what has been described as the first-ever Spanish climate case. At the material time, the Spanish ambition was to reduce emissions by 23% by 2030 (compared to 1990 levels); the three NGOs argued that this target should have been more ambitious, at 55%. In the absence of any response to the challenge by the Government, in September 2020, the three NGOs filed an administrative appeal to the Spanish Supreme Court. In 2023, the Supreme Court dismissed the case, with the plaintiffs announcing their intention to seize the European Court of Human Rights in Strasbourg.

Claims made:
These proceedings challenged delays in the adoption of the National Integrated Energy and Climate Plan (‘Plan Nacional Integrado de Energía y Clima’ or PNIEC), as required under European Union law (by 31 December 2019, see EU Regulation 2018/1999), as well as its low level of amibition. The Spanish government missed this deadline, only transmitting its PNIEC to the European Commission on 31 March 2020. In their pleadings, the applicants argued that the Spanish state must take more ambitious measures in order to guarantee respect for human and environmental rights for present and future generations.

Ruling:
On 24 July 2023, the case was decided by the Spanish Supreme Court, which rejected the appeal in full. The Court noted the formal nature of the complaints about delays in the adoption of the plan, and emphasized the short time frame for the adoption of the PNIEC imposed by EU law, as well as the complexity of decision-making within multi-level governance frameworks, which meant that the plan could not be considered void as a whole.

As concerns the level of amibition of the plan, the Supreme Court noted the need to decide this case under Spanish law, and not the case-law from other jurisdictions that had been cited by the applicants; it also noted the need to respect the concrete legal obligations that Spain had assumed under the Paris Agreement, as well as the need to balance climate action with the interests of a sustainable economy.

The Court held that the State had a wide margin of discretion in this context, and that the case was asking it to exceed its role by not only declareing an acceptable emissions target, but accordingly by imposing far-reaching changes to Spain’s economic policy. It noted that while the targets under the Paris Agreement were minimum targets (“at least”), as were those under EU law, the Spanish legislator had chosen to adhere to these minima, and not to exceed them.

On the fundamental rights claim, the Court referred to EU law on locus standi, especially the Armando Carvalho case. It emphasized the need to prevent voiding the criterion of direct and individual concern. Accordingly, it found that the alleged infringement of human rights by the PNIEC was not sufficient in itself to render these claims admissible. The decision to adhere to the minima set out under EU law could not be considered arbitrary, but instead constituted a legitimate exercise of the Spanish government’s constitutional powers.

Further proceedings:
After the ruling was issued, Lorena Ruiz-Huerta, counsel for the plaintiff organizations, announced their intention to take this case to the European Court of Human Rights in Strasbourg in order to “force the State to protect the human rights that are seriously threatened by climate change”.

Suggested citation:
Spanish Supreme Court, Greenpeace Spain et al. v. Spain, no. 1079/2023, 24 July 2023, ECLI:ES:TS:2023:3556.

Further information:
For the Supreme Court’s ruling (in Spanish), see here.

The applicants’ pleadings (in Spanish) are available via ClimateCaseChart.com.

Last updated:
4 August 2023

Categories
2023 Business responsibility / corporate cases Domestic court Emissions reductions/mitigation Imminent risk Paris Agreement Private and family life Right to a healthy environment Right to health Right to life Standing/admissibility Victim status

Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd., et al.

Summary:
On 20 March 2023, a first-instance court in Japan heard a civil case concerning the construction and operation of new coal-fired power plants brought by the citizens of Kobe. Two weeks previously, on 9 March 2023, the Japanese Supreme Court refused to hear its first-ever administrative climate case concerning the same set of facts, giving no substantive reasons for doing so. In the civil case, which was filed in 2018, 40 citizens of Kobe brought suit against three corporations involved in the construction and operation of the plants. They argued that these plants would impact themtheir personal rights and right to a peaceful life both through air pollution and through their contribution to the climate change.

As Grace Nishikawa and Masako Ichihara have explained on the Sabin Center’s Climate Law Blog, ‘personal rights’ are established through case-law and frequently enter into play in environmental cases. They protect personal well-being, including the rights to life, bodily integrity, health, and a peaceful life (the last of which the authors compare to the right to respect for private and family life under Article 8 of the European Convention of Human Rights). The plaintiffs in this case invoked these personal rights, arguing that the coal plants would aggravate climate change, leading to extreme heat and rainfall events that would directly affect them. In their submissions, they made arguments based on international and comparative law, mentioning carbon budgets, the Paris Agreement, the Dutch Urgenda case, and the Glasgow Climate Pact.

In its first-instance judgment, the Kobe District Court accepted that greenhouse emissions, including those from the plant, contribute to climate change and can violate personal rights. However, it found the risk of harm to the individual plaintiffs to be too uncertain, and rejected their claim, noting the difficulty of causally attributing responsibility for damage related to climate change.

Concerning the alleged violation of the right to a peaceful life, which the plaintiffs argued contains a right to a healthy and peaceful life, the Court likewise rejected this claim, for the same reasons, finding that fears about climate change were not concrete enough to constitute human rights violation. The Court also noted that there was no legally recognized right stable climate in Japan.

Concerning the additional air pollution complaint, the Court found that this was not serious enough to constitute a concrete danger to the plaintiffs’ rights. It also did not engage with the plaintiffs’ request for a preliminary injunction halting the operation of the coal plants.

Appeal:
Climate Case Chart reports that an appeal in this case was filed on 4 January 2023.

Further reading:
The above draws on the following two key sources:

The original case documents (in Japanese) are available via Climate Case Chart.

Suggested citation:
Kobe District Court, Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd., et al., Judgment of 20 March 2023.

Last updated:
20 July 2023

Categories
Access to a remedy Emissions reductions/mitigation European Convention on Human Rights European Court of Human Rights Gender / women-led Imminent risk Non-discrimination Private and family life Right to life Standing/admissibility The United Kingdom Victim status

Plan B. Earth and Others v. the United Kingdom

Summary:

On 11 July 2022, an application against the United Kingdom was filed before the European Court of Human Rights by the NGO Plan B. Earth and four individual applicants. The applicants argued that the United Kingdom’s government violated their rights under Articles 2, 8 and 14 of the ECHR by failing to take practical and effective measures to tackle the threat of anthropogenic climate change. They also submitted that they had suffered violations of their procedural rights under Articles 6 and 13 ECHR because they had been denied a full hearing of their case.

Citing the UK Government’s acknowledgment of the fact that climate change is a serious threat to humanity, the applicant NGO submitted that its membership included those “who are exposed to disproportionate and discriminatory impacts and risks, whether by virtue of age, gender, mental health or membership of racially marginalised communities, or because their family life is inextricably linked to communities on the frontline of the crisis.” The applicants also cited the State’s positive obligation to safeguard the right to life, and argued that the Paris Agreement, and its temperature goal of 1,5 degrees Celsius, are relevant in determining the scope of these positive obligations. They argued that practical and effective measures are required to ensure climate mitigation, adaptation, finance flows and loss and damage, and that the respondent State has failed in all four regards.

Victim status:

As concerns the applicants’ victim status, they argued that they were “victims” of the alleged Convention violations. They referred to domestic rules that increase the cost risk by £5,000 for each additional claimant in environmental cases; this rule serves to deter class actions, and therefore prevents applicants from sharing the cost and other risks involved in litigation. They noted that the first applicants’ members include individuals exposed to disproportionate and discriminatory impacts and risks as concerns their age, gender, membership of racially marginalised communities, family life inextricably linked with communities in the Global South, and mental health, and those who are at the intersection of such increased risks. They also noted that, given the high risk of overwhelming and irreversible interference with the applicants’ rights, denying them victim status would render their Convention rights theoretical and illusory.

Status of case:

The ECtHR declared the application inadmissible, holding that the applicants were not sufficiently affected by the alleged breach of the Convention or its Protocols to claim to be victims of a violation within the meaning of Art. 34 of the Convention. This decision was taken by a Committee judicial formation, as the result of a written procedure without a public decision.

According to Plan B Earth’s press release following the decision, the panel was composed of three judges, among which the UK Judge Tim Eicke.

Date of decision:

13 December 2022 (according to the ECtHR’s press release).

More information:

  • For the full text of the application form, click here.
  • For a press release from Plan B Earth on the filing, click here.
  • For the full claim before the High Court of Justice, click here.
  • For the Court of Appeals’ judgment, click here.

Suggested citation:
European Court of Human Rights, Plan B. Earth and Others v. the United Kingdom, Appl. no. 35057/22, Decision of 13 December 2022.

Last updated:
15 March 2023.