Climate change and the European Court of Human

Rights: The Portuguese Youth Case

ejiltalk.org/climate-change-and-the-european-court-of-human-rights-the-portuguese-youth-case/

Paul Clark, Gerry Liston, Ioannis Kalpouzos October 6, 2020

On 3 September, six Portuguese children and young adults

(aged 8 to 21) issued an Application to the European Court of
Human Rights (“ECtHR”) against 33 Council of Europe Member
States (all of the EU 27, plus the UK, Switzerland, Norway,
Russia, Turkey and Ukraine) in respect of the profound,
ongoing, and worsening impact that climate change is having
upon them. The effects that the Applicants are suffering, and
will suffer in the future, are squarely within the ambit of their rights to life and private and
family life, under Articles 2 and 8 of the European Convention on Human Rights
(“ECHR”). They also argue that the increasing effects that they are set to suffer over the
course of their lifetimes entail discrimination on grounds of age, and therefore breach
Article 14, when read with Articles 2 and 8. The Applicants allege specifically that the
Respondents are failing to sufficiently reduce their “territorial” emissions and, further, to
take responsibility for their contributions to “overseas” emissions entailed by (a) their
export of fossil fuels, (b) the import of goods containing “embodied” carbon and (c) the
contributions to emissions abroad of entities domiciled within their respective jurisdictions
(e.g. via fossil fuel extraction elsewhere or its financing). The Applicants are supported in
bringing their case by the Global Legal Action Network.

This post outlines some of the central features of the Application and in doing so
addresses certain points made by Professor Pedersen in his recent EJIL:Talk! post on the
case. Specifically, it addresses the Applicants’ arguments on presumptive responsibility
and the (narrow) margin of appreciation applicable in the area of climate change
mitigation. It also explains that the Applicants have filed their case directly with the ECtHR
not only because it would be impossible for them to simultaneously pursue legal actions
in 33 countries but also because of how domestic courts, to date, have misapplied the
doctrine of the margin of appreciation in the context of climate change.

Presumptive responsibility for breach of the ECHR

The lynchpin to the Application is that, because each of the Respondents contribute to
global emissions, they must be presumed responsible for the harm/risk that climate
change at its current trajectory poses to the Applicants (currently, they face the possibility
of living to see 4⁰C of global warming), and therefore for breaching the above-mentioned
ECHR rights. In making their legal case as to shared responsibility, the Applicants draw
upon the authoritative “Guiding Principles on Shared Responsibility in International
Law” (“Guiding Principles”) – the culmination of the crucial work of the SHARES Project).
In line with the Guiding Principles, they argue that States share responsibility for multiple
internationally wrongful acts when each of them engages in separate conduct that: (a) is
attributable to each of them separately; (b) constitutes a breach of an international

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obligation for each of those international persons; and (c) contributes to the indivisible
injury of another person. The argument on presumptive responsibility is further supported
by the general principle of law that where one or more of a number of potential
wrongdoers must have caused a particular harm, but there is uncertainty as to which of
them in fact caused that harm, then each of those potential wrongdoers
is presumptively responsible in law for the harm in question, such that the onus is on
those potential wrongdoers to show that they did not cause it (see: Separate Opinion of
Bruno Simma in Oil Platforms (Islamic Republic of Iran v. United States of America)).

Accordingly, the starting point of the Application is that the Respondents share
presumptive responsibility under the ECHR for the “indivisible injury” which climate
change causes the Applicants, and therefore bear the onus of “extricating” themselves
from this default position. It further follows from this position that the ambiguity
surrounding what constitutes a State’s “fair share” (having regard to, for example, its
historic emissions, its economic wherewithal, or its current per capita emissions) of the
necessary global climate change mitigation effort must be resolved in favour of the
Applicants. In effect, this means that States’ mitigation efforts must be assessed
according to the relatively more demanding measures of their respective “fair shares”
(consistent with the methodology adopted by the Climate Action Tracker), with greater
emphasis being placed on the extent to which they are consistent with their “highest
possible ambition” (as per Article 4(3) of the Paris Agreement).

These arguments aim to prevent the otherwise inevitable attempt by States to shift
responsibility away from themselves (and onto other States) for the impacts of climate
change. Furthermore, they aim to stop States from extricating themselves from their
default position of responsibility on the basis of mitigation efforts which are not collectively
consistent with preventing the indivisible injury to which that presumptive responsibility
relates.

The margin of appreciation and climate change

Nor should the margin of appreciation doctrine be read as allowing states broad
discretion in the area of climate change mitigation. There is, in this regard, a critical
difference between the issues which arose in cases such as Hatton v UK, concerning the
regulation of noise pollution, and that of climate change. In Hatton, the margin of
appreciation was relied upon to determine the extent of the interference to the rights
protected by Article 8 which was permissible in that case, having regard to the competing
economic interests at stake. If, however, in the case of climate change, it is accepted that
the ECHR must be read in light of the temperature target prescribed by the Paris
Agreement, then the interference with Article 8 rights that will result from global warming
exceeding that target cannot ever be deemed “necessary in a democratic society”.
Accordingly, the question which the margin of appreciation was relied upon to address
in Hatton is, when it comes to climate change, already answered.

It is important to emphasise that the “best available science” is entirely clear as to the
extent of the emissions reductions that are required, at a global level, to meet the goal of
the Paris Agreement. There is nothing “difficult” or overly “technical” about this question.

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In this context, Professor Pedersen perhaps overstates the extent to which the
Application relies on the precautionary principle: reference is made to that principle only
once, regarding the need to take into account scientific uncertainty as to the precise
amount by which the atmosphere will warm on the basis of current emissions. The most
likely projected temperature rise will still cause devastating impacts to the Applicants and
others.

The uncertainty with which the Application is principally concerned relates to the “fair
share” question. On this issue, and, ultimately, on the determination of the amount by
which emissions must be reduced, States ought not to enjoy a wide margin of
appreciation. This follows from the very nature of the margin of appreciation as a feature
of the principle of subsidiarity: as the ECtHR first noted in Handyside v UK, the margin
stems from the observation that, “by reason of their direct and continuous contact with the
vital forces of their countries, state authorities are in principle in a better position than the
international judge to give an opinion on” certain matters relating to the interpretation and
implementation of the Convention. Clearly, States’ “contact with the vital forces of their
country” is of limited relevance when it comes to determining the extent of their respective
obligations to mitigate the global problem that is climate change. Conversely, the ECtHR
is particularly well positioned, from its vantage point as an international court, to
determine whether a State’s mitigation efforts are consistent with the temperature goal
prescribed by the Paris Agreement (and therefore the ECHR). Indeed, put simply, giving
States a broad margin of appreciation in this area would be incompatible with the
imperative of achieving that goal. Therefore, in the area of climate change mitigation, the
margin of appreciation is to be confined to “choice of means”.

Domestic climate change cases and exhaustion of domestic remedies

In various domestic climate change cases decided to date, courts (in the UK, Ireland,
Germany and Norway, for example) have referred to “separation of powers”-type
considerations when determining the scope of the margin of appreciation which States
enjoy when determining their emissions reduction efforts. Even in the vitally important
decision in the Urgenda case, the Dutch Supreme Court emphasised the need for judicial
restraint when applying the ECHR to the Netherlands’ climate mitigation policies. This led
the Court to endorse the lowest end of the equity range (25-40% on 1990 levels by 2020
for developed countries) which was presented to it – an approach which, if replicated, is
inherently incapable of keeping global warming to the goal of the Paris Agreement.
Moreover, the conflation of domestic constitutional law-based principles with the margin of
appreciation conflicts with the ECtHR’s understanding of that principle. As it held in A v
UK, “[t]he doctrine of the margin of appreciation has always been meant as a tool to
define relations between the domestic authorities and the Court [and] cannot have the
same application to the relations between the organs of the State at the domestic level”.

This leads to the question why the case has been filed directly with the ECtHR, before
exhausting domestic remedies. The Applicants firstly make the entirely reasonable
argument that it would not be practically feasible for them to pursue proceedings through
the domestic courts of each of the 33 Respondents. They also contend, however, that
thus far domestic courts in Europe have not provided adequate remedies in respect of

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inadequate climate mitigation policies – largely because of how they have misapplied the
margin of appreciation in this context. This, together with the exceptionally urgent need
for the provision of adequate remedies in this area throughout Europe, further justifies
their filing of an application directly with the ECtHR. This argument is entirely consistent
with the principle of subsidiarity which has always co-existed alongside the well-
established exceptions to the exhaustion of domestic remedies rule on which the
Applicants rely. It is also worth noting in this regard that the remedy they seek from the
ECtHR is a declaration that the Respondents are in breach of the Convention, rather than
an order requiring them to reduce their emissions by specific amounts (as made in
Urgenda). Crucially, however, the judgment that is sought from the ECtHR will encourage
domestic courts to make Urgenda-type orders that, collectively, ensure that Europe’s
contribution to the global mitigation effort is consistent with the goal of the Paris
Agreement. This, indeed, would be an example of subsidiarity in action.

States’ obligations in relation to their contributions to overseas emissions

Finally, a few brief points may be made regarding States’ obligations to address their
contributions to overseas emissions. For a start, as held in Budayeva v Russia, one of the
main authorities on the application of the Convention in the environmental context, Article
2 of the Convention imposes a “duty to do everything within the authorities’ power” to
protect human life in that sphere. It is hardly consistent with this view that a State could,
for example, export vast quantities of fossil fuels without any consequence for its
responsibility under the Convention. According to Professor Pedersen’s view, the ECtHR
will not accept the argument that emissions stemming from, for example, exported fossil
fuels ought to be attributed to the exporting state because of the approach to emissions
accounting applied under the UNFCCC. However, as Den Heijer has concluded, following
his comprehensive review of the ECtHR’s approach to shared responsibility, the Court’s
“expansive interpretation of positive duties … may … render issues of attribution
redundant.” Of particular relevance in this context is the decision in Ilascu v Russia and
Moldova where the ECtHR held that a “State’s responsibility may […] be engaged on
account of acts which have sufficiently proximate repercussions on rights guaranteed by
the Convention, even if those repercussions occur outside its jurisdiction.” There is,
furthermore, nothing in the UN Framework Convention on Climate Change to suggest
that States’ mitigation efforts should be confined to reducing their territorial emissions.

Conclusion: the Applicants’ victim status and the interplay between domestic and
international courts

Far from being an actio popularis in disguise, as Professor Pedersen suggests, the
Applicants’ case is firmly grounded on evidence of the direct effects which climate change
– to which, of course, each of the Respondents contribute – is having, and will have, on
their lives. The fact that countless others stand to endure similar effects, and therefore to
benefit from the decision they seek, does nothing to undermine their status as “victims”
for the purpose of Article 34 of the Convention (see e.g. Zakharov v Russia). Indeed, it is
a fact to which the ECtHR must have regard when addressing the responsibility of the
Respondents for breaching the Applicants’ rights (see e.g. Broniowski v Poland).

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Similarly, the fact that enforcement of the Respondents’ obligations to the Applicants may
ultimately depend, in practice, on other individuals bringing cases before the domestic
courts throughout Europe does nothing to undermine their status as victims (or,
conversely, to render their Application an actio popularis). Indeed, it is a reality which is
consistent with their argument that it would not be feasible for them to exhaust remedies
before each of the Respondents’ domestic courts.

Ultimately, when it comes to climate change litigation, the question must never be
whether either domestic or international courts are the appropriate fora before which to
pursue climate change cases. Rather, to realise the full potential of the law to tackle the
climate emergency, the symbiotic relationship which exists between both domestic and
international courts – and, by extension, domestic and international law – must be
harnessed.

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