Category: Right to life

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Children and young people Domestic court Elderly Emissions reductions/mitigation European Convention on Human Rights Ireland Private and family life Right to life Vulnerability

Community Law and Mediation Centre and others v. Ireland

Summary:
In September 2024, an Irish NGO — the Community Law and Mediation Centre (CLM) — and three individual plaintiffs were granted leave to proceed with a climate case against the Irish government. The plaintiffs argued that the government’s Climate Action Plan 2024 (CAP24) violated legislative targets as set out in the Climate and Low Carbon Development Act 2015, did not comply with the country’s carbon budget, and violated the fundamental rights of the three individual plaintiffs — who are, respectively, a grandfather, a youth climate activist, and a toddler — as well as of the vulnerable groups represented by CLM and of future generations. The plaintiffs invoked the European Convention on Human Rights (ECHR), as concretized in the KlimaSeniorinnen judgment, alongside constitutional rights under the Irish Constitution and the Charter of Fundamental Rights of the European Union. It also builds on the 2020 judgment of the Irish Supreme Court, in the Friends of the Irish Environment case. There, the Court quashed the first Irish mitigation plan because of its inadequate level of detail.

The CLM stated that:

Ireland’s emissions are not decreasing rapidly enough to stay within the confines of the State’s own legally binding 2025 and 2030 carbon budgets and successive Climate Action Plans have fallen short on implementation. Low income and marginalised groups, the groups CLM has represented since its establishment almost 50 years ago, stand to be disproportionately impacted by climate change but have least opportunity to protect or vindicate their rights. In taking this case, CLM seeks to serve as a vehicle for collective recourse for these communities and future generations.

Status of case:
Pending

More information:

Last updated:
29 November 2024

Categories
Adaptation Disability and health-related inequality Domestic court Elderly Emissions reductions/mitigation Human dignity Paris Agreement Right to health Right to housing Right to life Right to subsistence/food South Korea Vulnerability

Senior Citizens v. Korea

Summary:
In June 2024, a group of 123 older South Korean citizens brought suit against their government before South Korea’s National Human Rights Commission, arguing that the government’s greenhouse gas mitigation plans had violated their human dignity and their right to life. Their case concerns both mitigation and adaptation action. In terms of mitigation, they sought enhancement of the country’s 2030 national greenhouse gas reduction targets and an ambitious next nationally determined contribution (NDC) under the Paris Agreement. In terms of adaptation, they sought a risk assessment of impacts on human rights, including the rights to life, food, health, and housing, and emphasized the State’s fundamental obligation to protect these rights. This assessment should entail, they argued, “a factual survey and epidemiological investigation into the risks the climate crisis poses to the human rights of vulnerable social groups, including older persons”, and lead to more ambitious adaptation measures.

Petition:
The full text of the petition as filed can be found below.

Senior_Citizens_v_Korea_petitionDownload

Status of case:
Pending before South Korea’s National Human Rights Commission

Last updated:
29 November 2024

Categories
Children and young people Children's rights/best interests Domestic court Emissions reductions/mitigation Fossil fuel extraction Private and family life Public trust doctrine Right to culture Right to health Right to life Sea-level rise United States of America Vulnerability

Sagoonick et al. v. State of Alaska II

Summary:
On 22 May 2024, a group of young people supported by the NGO ‘Our Children’s Trust’ filed suit against the U.S. State of Alaska arguing that statutory requirements to develop and advance the Alaska Liquefied Natural Gas (LNG) Project violate their public trust rights as well as their rights to substantive due process, life, liberty and property, and the right to protected natural resources for “current and future generations” under the Alaskan Constitution. They argue that this project will cause “existential harms to the lives, health, safety, and cultural traditions and identities of Alaska’s youth, and substantially limit their access to the vital natural resources upon which they depend.”

The case follows on an earlier case against Alaska, Sagoonick et al. v. Alaska I, which was rejected in 2022 by a divided Alaskan Supreme Court.

Claims made:
The case challenges legislation creating the Alaska Gasline Development Corporation, a state agency created to pursue building a new LNG pipeline. 

According to the plaintiffs, Alaska is “already in a state of climate disruption” and the contested project “would ensure continuing and substantially elevated levels of climate pollution for decades, locking in increasing and worsening harms to Youth Plaintiffs”. They argue that the youth plaintiffs are “uniquely vulnerable to climate change injuries and face disproportionate harms”. Arguing that climate pollution is already causing dangerous climate disruption in Alaska, injuring the plaintiffs in this case, they cite the following climate-related impacts:

  • temperature increase, heatwaves, and other heat-related changes;
  • thawing permafrost;
  • changing precipitation patterns, extreme weather events and droughts;
  • loss of sea, river, and lake ice;
  • ocean acidification;
  • melting glaciers and sea level rise; and
  • increasingly frequent and severe wildfires and smoke.

The plaintiffs sought a declaration that the contested provisions of State law violate their public trust rights to equal access to public trust resources and to sustained yield of public trust resources free from substantial impairment. They argued that the state of Alaska has a duty under the public trust doctrine to ensure “the continuing availability of public trust resources for present and future generations”.

In addition, they sought a declaration that they have a fundamental right to a climate system that sustains human life, liberty, and dignity under the Alaskan Constitution, which is being violated by the contested statutory provisions.

The youth plaintiffs also petitioned the court to enjoin the defendants from taking further actions to advance or develop the Alaska LNG Project. They sought costs and expenses as well as “such other and further relief as the Court deems just and equitable.”

Recent developments:
In October 2024, it was reported that the state of Alaska had asked the Court to dismiss the case.

2024.05.22.AK+LNG+ComplaintDownload

Last updated:
14 November 2024

Categories
Children and young people Domestic court Emissions reductions/mitigation Paris Agreement Right to culture Right to development and work Right to health Right to housing Right to life Right to property

Environmental Rights Foundation and others v. Taiwan  

Summary:
On 30 January 2024, Taiwanese environmental groups, along with children and other individual plaintiffs, petitioned the Taiwanese Constitutional Court to demand intergenerational climate justice from the government. Their case challenges the 2023 Climate Change Response Act (氣候變遷因應法) because it does not include short and medium-term national periodic regulatory goals for reducing greenhouse gas emissions. In doing so, the plaintiffs contest the government’s plan to reduce greenhouse gas emissions by 23-25% compared to 2005 levels, which they considered insufficiently ambitious.

The case was brought by an NGO, the Environmental Rights Foundation, along with individuals who allege that they are particularly vulnerable to the impacts of climate change (including because of their livelihoods related to farming and fishing, by virtue of their Indigenous heritage and culture, or because they are children).  

The plaintiffs argue that the current regulation does not adequately safeguard their right to life, right to bodily integrity and health, right to survival, right to housing, right to work, property rights and cultural rights. They argue that the legislature has forsaken its obligation to ensure an adequate regulatory framework including a cross-generational allocation of greenhouse gas emissions reductions. The 23-25% reductions target does not allow Taiwan to reach net zero by 2050 and is insufficiently protective of fundamental rights. The plaintiffs argue that, under current measures, Taiwan will exhaust its remaining carbon budget for a 1.5°C and 1.7°C world by 2030. In addition, the current measures do not set sufficient interim yearly goals because it lacks goals for the period from 2026 to 2030.

Last updated:
4 October 2024

Categories
Domestic court Emissions reductions/mitigation Imminent risk Indigenous peoples rights Indigenous peoples' rights Minority rights New Zealand Paris Agreement Right to life Separation of powers

Smith v. Attorney General

Summary:
This case was filed in 2022 and concerns the same plaintiff as the Smith v. Fonterra corporate responsibility case. The plaintiff in these cases is a Māori landowner and spokesperson on climate change for his tribe (iwi). He argued that the climate policy of the New Zealand government had failed to adequately protect the citizens of New Zealand, and especially Māori, against the impacts of climate change. Before the High Court, he submitted that “the Government has taken no or inadequate climate change mitigation measures since it had become aware of the causes and effects of climate change down to the present.” In July 2022, the High Court struck out all of the applicant’s claims. The Court of Appeal rejected his appeal on all counts in December 2024.

Claims made:
The plaintiff’s case is based on three main arguments (expanded from the original submissions, which concerned only the first argument of the three). First, the plaintiff argues that the government breached its common law duty of care to “take all necessary steps to reduce NZ emissions and to actively protect the plaintiff and his descendants from the adverse effects of climate change”, as derived from its authority over the territory of New Zealand, the government’s duty of care, and its responsibility to Māori. Secondly, he alleged a breach of the rights enshrined in sections 8 and 20 of the New Zealand Bill of Rights Act 1990 (NZBORA), concerning deprivation of life and the denial of the right to practise culture. Here the plaintiff argued that the Crown had “failed to put in place an effective legislative and administrative framework properly designed to provide effective mitigation against the climate change risk in accordance with the best available science and New Zealand’s international and domestic legal obligations.” He invoked the protection of his own life, those of his tribe and clan, and those of future generations. Thirdly, he argued that the government had violated the Tiriti o Waitangi | the Treaty of Waitangi, New Zealand’s founding document, and the consequent fiduciary duties owed to the plaintiff and those he represents.

Finding of the High Court:
In July 2022, the High Court struck out all three claims. First, it found that the plaintiff’s arguments about the common law duty of care were not based on recognized legal obligations or case-law. It was also considered too far-reaching: “any relief, if it were available, would be an ineffective and piecemeal way to deal with climate change issues. Every person in New Zealand would be entitled to sue the Government under the novel duty.” It noted too that “the courts have neither the technical capacity nor the political mandate to co-ordinate in an integrated way to mitigate the effects of climate change”.

On the second argument, the Court found that the right to life claim was untenable because the plaintiff had not demonstrated a “‘real and identifiable’ risk to the life of a specified individual or even a class of individuals. It is a general threat that may eventuate as a result of the effects of climate change to all New Zealanders.” In addition, the Court was not convinced that it was possible to draw analogies to Dutch law, and specifically the Urgenda case invoked by the plaintiff, meaning that “[t]he decision in Urgenda must be treated with caution”.

Furthermore, on the minority rights claim, the Court held that the plaintiff had not alleged specific breaches of that right, which only entailed positive obligations under exceptional circumstances. It also held that the plaintiff’s case was “based on a claim that an existing legislative and policy framework is inadequate to protect Māori. There is no allegation of opposition or coercion targeting Māori that fits within that exceptional category here.” Accordingly, this part of the case was also declared inadmissible.

Finally, concerning the Tiriti o Waitangi, the Court found that this claim was so broad, and climate change was so complex, that “any fiduciary obligations arising from the Crown would be owed to the public in general. This alone makes the claim untenable”. To be contemplated, such a claim would depend on an underlying duty — here, the duty of care invoked by the applicant — which had already been rejected above, making this claim untenable. In addition, the Court held, “a claim that such a duty is owed to only a subsection of New Zealanders, Māori, as opposed to the public in general, is a further reason that it cannot be tenable”.

Judgment of the Court of Appeal:
On 19 December 2024, the Court of Appeal issued its ruling in this case, rejecting the applicant’s appeal on all counts.

On the claim concerning the right to life, the court considered six questions: 
           a)  whether that right includes a right to a life with dignity;
           b)  whether the widespread nature of (climate) effects preclude the applicability of the right to life;
           c)  whether the risks from climate change are sufficiently proximate;
           d)  whether the right to life can impose positive duties on the State;
           e)  whether it is tenable that New Zealand’s regulatory framework breached the right to life; and
           f)  whether reporting orders are tenably available.

On the first question, it found that it was not clearly untenable that the right to life includes a right to a minimum baseline as to the quality of life and is therefore applicable to the potential impacts of climate change.  This, it held, is consistent with international jurisprudence. Throughout, it extensively engaged with international jurisprudence (Billy, Teitiota) and soft-law materials (the HRC’s General comment No 36).

On the second question, the Court found that it was not clearly untenable on the grounds that the alleged risk to life potentially affects a large group or all of the population.   

On the third question, again referring to international climate jurisprudence on equivalent rights, and particularly engaging with the ECtHR’s KlimaSeniorinnen judgment, the Court found that this would be a matter of (scientific) evidence for trial, and that it could accordingly not strike this out at this stage. 

On the fourth question, the Court found – given the context of the climate emergency and the case-law from around the world responding to this challenge — it was not clearly untenable that NZBORA’s right to life requires the government to take protective measures against foreseeable threats to life. 

On the fifth question, on the challenge to the efficacy of the legislative framework responding to climate change, the Court found that it could not second-guess parliamentary policy choices, striking out this claim while referring to the possibility of judicial review of concrete actions taken under the legislative framework.

On the sixth question, it found that the court’s institutional role did not encompass an ongoing monitoring role of the measures the Crown is implementing in response to climate change.

On the right to culture, the court found that it was not clearly untenable that climate change could give rise to a positive obligation to protect against a denial of the right to culture under s20 of NZBORA where a substantial interference amounting to a denial of the right occurs. However, here too the court found that the pleaded deficiencies of the domestic legal framework reflect policy choices that are for Parliament and that it could not review.

As concerns the claim of a breach of te Tiriti, the court found that this was clearly untenable because the domestic legislative framework gives effect to the Crown’s obligations under the Treaty and allows for decisions consistent with Treaty principles.

As concerns the claim that the Crown owes fiduciary duties to Mr Smith, his whānau, Ngāpuhi and Ngāti Kahu, the court found that the claimed fiduciary duty was not comparable to specific fiduciary duties arising between the government and certain Māori due to particular dealings between them.  As a result, the pleaded claim was inconsistent with the nature of fiduciary duties because the response to climate change required a balancing of interests and the government could not act purely in the interests of the pleaded beneficiaries. 

As concerned the claim that there was a novel common law duty in place, relying on the common law public trust doctrine, this doctrine stemmed from the context of access to seashores and navigable waters and was thus too far removed from the extensive duty pleaded in relation to climate change.  The court found that the boundaries of the public trust doctrine are imprecise and fluid, raising a host of conceptual problems in imposing fiduciary or trust-like obligations on the government, and that the doctrine could in any case be displaced by legislation; domestic law did not leave room for its application.

Status of the case:
Appeal to the Court of Appeal rejected 19 December 2024.

Further reading:
The text of the High Court ruling is available here.

The text of the Court of Appeal ruling is available here.

Suggested citation:
High Court of New Zealand, Smith v. Attorney General, [2022] NZHC 1693.

Court of Appeal of New Zealand, Smith v. Attorney General, [2024] NZCA 692.

Categories
2024 Children and young people Domestic court Emissions reductions/mitigation Paris Agreement Right to a healthy environment Right to life Right to property Right to pursue happiness Uncategorized

Min-A Park v. South Korea

Summary:
In July 2023, a fourth constitutional mitigation case was filed before the South Korean Constitutional Court. This case was consolidated with three previously-filed climate cases, representing a total of 255 plaintiffs, and the Constitutional Court issued its ruling in all four cases on 29 August 2024. This joint ruling was reported as a landmark judgment and as the first finding of its kind in Asia (i.e. the first time that a court in the region found that inadequate mitigation action violates constitutional rights).

In the present case, 51 individuals argued that their constitutional rights were being inadequately safeguarded by the failure to create an adequate implementation plana for South Korea’s 2030 Nationally Determined Contribution under the Paris Agreement (NDC). This makes this case somewhat different from the other three, in the sense that it does not contest the country’s 40% reduction target (by 2030) itself, but argues that domestic measures will not be enough to meet that target. The plaintiffs estimated that current steps envisioned under South Korea’s Carbon Neutrality Plan would achieve only a 29.6% emissions reduction.

As per the complaint document (available, in the original Korean, on ClimateCaseChart), the plaintiffs invoked their rights to life, to pursue happiness, to general freedom, to property and to a healthy environment along with the State’s obligation to protect against disasters and protect fundamental rights.

Relevant developments:
On 12 June 2023, shortly before this case was filed, it was announced that the National Human Rights Commission of Korea had decided to submit an opinion to South Korea’s Constitutional Court to oppose the country’s Carbon Neutrality Act (2021), which it considered to be unconstitutional and in violation of the fundamental rights of future generations because it sets out a greenhouse gas emissions reductions target that was too low. The Act sets out a 40% emissions reductions target by 2030 as compared to 2018 levels. This, the Commission found, did not respect the constitutional principle of equality, because it passed the burden of greenhouse gas emissions on to future generations.

Consolidation with three other cases:
The South Korean Constitutional Court decided to consolidate its first four climate cases (Do-Hyun Kim et al. v. South Korea, Woodpecker et al. v. South Korea (Baby Climate Litigation), Climate Crisis Emergency Action v. South Korea (a.k.a. Byung-In Kim et al. v. South Korea) and Min-A Park v. South Korea (the present case). Public hearings in the cases were held on 23 April 2024 and 21 May 2024.

These cases all alleged that the government’s inadequate greenhouse gas reduction targets violated citizens’ fundamental rights, particularly those of future generations. Together, the four cases comprised over 250 plaintiffs, including civil society, youth and children. The Constitutional Court issued a joint ruling in these cases on 29 August 2024.

Judgment of the constitutional court:
On 29 August 2024, the South Korean Constitutional Court found a violation of constitutional rights in this case and three related cases. In an unanimous ruling, hailed as “the first decision of its kind in Asia“, the court found that the government’s response to the climate crisis was inadequate and threatened constitutional rights, noting that the country lacked legally binding long-term emissions reductions targets for the post-2031 period, which violated the constitutional rights of future generations by shifting an excessive reductions burden to the future. The Court gave government and legislature 18 months (until 28 February 2026) to introduce the relevant targets.

In particular, the Court ruled that Article 8(1) of the South Korean Carbon Neutrality Basic Act was unconstitutional. Previously, the government had pledged a 40% reduction of its GHG emissions by 2030 compared to 2018 levels, but had failed to set any targets since. The Constitutional Court held that this “does not have the minimum character necessary as a protective measure corresponding to the dangerous situation of the climate crisis”, citing the “principle of non-underprotection”, which means that the State must take appropriate measures to effectively protect the constitutional rights of its citizens.

Simultaneously, the Court held that the government’s target for 2030 did not infringe constitutional rights.

See also:
Do-Hyun Kim et al. v. South Korea.

Last updated:
29 August 2024.

Categories
Class action Domestic court Emissions reductions/mitigation European Convention on Human Rights Extreme poverty Germany Just transition litigation Paris Agreement Private and family life Right to health Right to life

“Zukunftsklage” (Greenpeace and ors. v. Germany) – Neubauer II / Steinmetz III

Summary:
On 26 June 2024, it was announced that five German environmental organisations, together with a large number of individual plaintiffs, would be preparing a total of three new constitutional complaints against the Federal Government’s inadequate climate policy and the gutting of the Climate Protection Act (KSG) for the event that Federal President Frank-Walter Steinmeier were to sign pending amendments of the Act into law.

The five organisations — Germanwatch, Greenpeace, Deutsche Umwelthilfe (DUH), Bund für Umwelt und Naturschutz Deutschland (BUND) and Solarenergie-Förderverein Deutschland (SFV) — will each lead a complaint together with plaintiffs affected by climate change in different areas of their lives. Some of these plaintiffs were parties to the groundbreaking Neubauer case before the Federal Constitutional Court, including Luisa Neubauer, Sophie Backsen, Hannes Backsen, and Lüke Recktenwald.

The applicants argue that, even though the Neubauer case elevated climate action to the level of constitutional protection, insufficient action has taken place since then. Drawing on the intertemporal constitutional freedoms recognized in Neubauer, the interests of intergenerational justice, impacts on life and health, and the judgment of the European Court of Human Rights in KlimaSeniorinnen, wherein it found a violation of the right to respect for private and family life in Art. 8 ECHR, the plaintiffs argue that the requisite climate action is being delayed further into the future, increasingly endangering the future enjoyment of rights. This particularly affects the transport sector, where “extreme cuts and measures” will be required to meet reductions targets.

The plaintiffs note that the German Council of Climate Experts has made it clear that Germany is unlikely to achieve its climate targets for 2030, and that according to data from the Federal Environment Agency, the target of net zero by 2045 will also be missed by a considerable margin given current plans. This is in part due to abolition of funding programs as a result of the Federal Constitutional Court’s ruling on the Climate and Transformation Fund in November 2023.

Focusing particularly on an amendment to the German Climate Protection Act (KSG), passed by the German Bundestag on 26 April 2024, the plaintiffs note that this move (i) abolishes binding sector targets; (ii) eliminates the requirement for corrective action to catch up on missed targets; and means that (iii) post-2030 compliance with emission targets will only be considered in detail from 2029 and only planned and implemented from 2030. Overall, these legislative changes show that the legislator has not understood the constitutional limits to the overall concept of climate protection.

Since the 2021 Neubauer judgment, the plaintiffs argue, the German CO2 budget has been unnecessarily used up, while feasible and proportionate measures have not been taken. For example, the introduction of a speed limit on German freeways and in cities would have saved considerable amounts of CO2 and thus protected opportunities for freedom. The plaintiffs also cite failure to plan for green mobility options in rural areas. While immediate action in the transport sector would make it possible to transition gradually, the current plans require an “emergency stop” that will severely limit the freedoms of especially poorer segments of the population.

This cannot be countered by the fact that regulations exist at EU level. The applicants argue that EU climate protection law as a whole, and for the transport sector in particular, does not guarantee the necessary protection of fundamental rights because it does not contain any binding interim targets after 2030 and does not specify a comprehensible budget up to 2050. And, the plaintiffs note, German legislators are currently not even complying with the requirements of EU law, as established by the German Council of Climate Experts, among others.

Relief sought:
In their announcement, the plaintiffs set out three motions for relief.

  1. The German Climate Protection Act (KSG) still allows too many emissions given that the German emissions budget is empty if measured by the 1.5°C target of the Paris Agreement and the European Court of Human Rights, and almost empty if measured against the 1.75°C threshold set by the Federal Constitutional Court in 2021. The law is not ambitious enough, the permitted quantity targets jeopardize human rights instead of securing them. This must be changed to comply with the state’s existing duty to protect.
  2. The recent amendment to the KSG is unconstitutional. By weakening the required measures to reach Germany’s goals, the amendment violates the intertemporal freedoms recognized in Neubauer. The amendment must be repealed and the old law must apply unchanged.
  3. The failure to take climate protection measures in the transport sector already violates intertemporal civil liberties, making disproportionate measures unavoidable later in time. People in rural areas are particularly affected by such restrictions on freedom, putting socially disadvantaged groups at a disadvantage.

Cases under the “Zukunftsklage” umbrella:

A first case under this umbrella was filed in July 2024. Known as “Steinmetz, et al. v. Germany III“, this case was brought by an NGO, Deutsche Umwelthilfe, and 11 individual plaintiffs aged between 14 and 27. They allege that current reforms are insufficient and that they violate the principle of intergenerational freedom developed in the Neubauer ruling. Drawing extensively on the European Court of Human Rights’ KlimaSeniorinnen judgment, they also argue that current mitigation plans in Germany infringe their rights to life and physical integrity, drawing on Article 8 ECHR.

Complaint form in the Steinmetz III caseDownload

Last updated:
29 November 2024

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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 Children and young people Children's rights/best interests Human dignity Inter-American Human Rights System Peru Right to a healthy environment Right to health Right to life

Inhabitants of La Oroya v Peru

Summary:

The Inter-American Court of Human Rights (IACtHR) ruled on 27 November 2023 that Peru is accountable for violating various rights of residents living near the La Oroya Metallurgical Complex (CMLO), established in 1992 in La Oroya. The CMLO, dedicated to smelting and refining metals such as lead, copper, zinc, and arsenic, caused severe environmental pollution, contaminating air, water, and soil, and adversely affecting residents’ health and well-being. Consequently, the Court mandated Peru to conduct an environmental contamination analysis, provide free medical care to affected individuals, and adjust pollutant standards, marking a significant victory for the plaintiffs after enduring years of pollution and inadequate governmental response.

Claim:

The residents of La Oroya brought claims against Peru, asserting that the government’s failure to regulate and address the environmental contamination from the smelting complex violated their fundamental human rights, including the right to a healthy environment, health, and life. They presented evidence of the adverse health effects experienced due to exposure to toxic pollutants emitted by the complex.

Decision:

On 27 November 2023, the IACtHR declared Peru responsible for multiple human rights violations affecting the inhabitants of La Oroya. These violations are rooted in the contamination of the air, water, and soil caused by mining-metallurgical activities in the CMLO. The State’s failure to regulate and supervise these activities exacerbated the situation, leading to violations of the rights to a healthy environment, health, life, and personal integrity of the victims. Furthermore, the Court found that the State failed to fulfil its obligation of progressive development concerning the right to a healthy environment by regressing air quality standards.

The Court also determined that the State neglected children’s rights by not implementing adequate protection measures, considering the disproportionate impact of contamination on the children of La Oroya. It emphasized the critical connection between safeguarding children and addressing the climate crisis, noting that mining and industrial activities, particularly those involving fossil fuels, are significant contributors to greenhouse gas emissions, posing risks to public health and exacerbating climate change. It further acknowledged the vulnerability of children to the impacts of climate change and the long-term consequences they face, as underscored by the United Nations Committee on the Rights of the Child in the Sacchi case. Consequently, the Court asserted that states have a duty to protect children and must take decisive action to mitigate health risks from pollutant emissions that exacerbate climate change crisis.

Moreover, the Court concluded that the State violated the right to public participation and adequate information provision to the victims regarding measures affecting their rights. Additionally, it found the State in violation of the right to judicial protection by failing to comply with a decision of the Constitutional Court for the protection of La Oroya’s inhabitants, which was delivered in 2006.

Finally, the Court held the State accountable for not investigating reported acts of harassment, threats, and reprisals against some victims. Based on these findings, the Court determined that the State of Peru violated several articles of the American Convention on Human Rights, specifically articles 26, 5, 4.1, 8.1, 13, 19, 23, and 25, in relation to articles 1.1 and 2 of the same instrument

Peru was ordered to conduct a comprehensive study assessing contamination in air, water, and soil in La Oroya and to develop an environmental remediation plan accordingly. Furthermore, Peru was ordered to provide free medical care to victims and compensate them individually with amounts ranging between $15,000 and $30,000. This decision emphasizes states’ obligation to safeguard the right to a healthy environment and hold them accountable for environmental harm threatening their citizens’ well-being.

Environmental protection as jus cogens:

In para. 129 of its ruling, the Court made a novel finding: it held that the obligation to protect the environment should be a jus cogens norm. The paragraph in question is translated here in full:

“States have recognised the right to a healthy environment, which carries with it an obligation of protection that is incumbent on the international community as a whole. It is difficult to imagine international obligations of greater significance than those that protect the environment against unlawful or arbitrary conduct that causes serious, extensive, long-lasting and irreversible damage to the environment in a scenario of climate crisis that threatens the survival of species. In view of the above, international protection of the environment requires progressive recognition of the prohibition of this type of conduct as a peremptory norm (jus cogens) that gains the recognition of the international community as a whole as a norm from which no derogation is permitted. This Court has pointed out the importance of the legal expressions of the International Community whose higher universal value is indispensable to guarantee essential or fundamental values. In this sense, guaranteeing the interest of both present and future generations and the preservation of the environment against its radical degradation is fundamental for the survival of humanity.” (para. 129 of the judgment, translated by climaterightsdatabase.com, references removed).

Links:

The case documents are accessible below for download:

Court-statement-about-the-rulingDownload
Full-text-of-the-rulingDownload
Official-summary-of-the-rulingDownload

Status of the case:

Decided.

Further reading:

For further information and analysis of the case, see among others:

  • José Saldaña, ‘People from La Oroya vs Peru, Inter-American Court of Human Rights: How Effective is International Law to Protect the Environment in Extractive Contexts?’, EJIL:Talk Blog, 11 April 2024, available here.
  • Patricio Trincado Vera, ‘The Right to a Healthy Environment in La Oroya v. Peru: A Landmark Judgement of the IACtHR’, OpinioJuris Blog, 25 May 2024, available here.

Suggested citation:

Inhabitants of La Oroya v Peru (Preliminary Exceptions, Merits, Reparations and Costs), Judgment of November 27, 2023, Inter-Am Ct HR, Series C No 511.

Last updated:

25 March 2024.