Climate Change and the Convention

5 November 2020, Tim Eicke QC, Judge, European Court of Human Rights

[1] It is a great honour to have been asked to give the annual Macfadyen Lecture and to follow in the footsteps of such eminent colleagues as Sir David Edward, Judge Ian Forrester and Lady Hale.

[2] Having never met Lord Macfadyen, I tried to find out a little more about him before addressing you this evening. However, despite all my research, I have been unable to get any real sense of what he would have made of the topic of today’s lecture: the role of the courts, and in particular my Court – the European Court of Human Rights – as a mechanism for engaging with the challenges posed by climate change through the European Convention on Human Rights.

[3] I do not want to jump too far ahead, but one thing that will become clear from what I am about to say is that this topic will require those of us who will have to adjudicate on the increasing number of climate change challenges under, or by reference to, the Convention to bring to bear all of our learning and lucidity, our understanding and courage, and all the other qualities that Sir David Edwards identified in the first of these lectures as ‘the ideal of what a good Scottish judge should be’ and something that ‘no one … more perfectly represented’ than Lord Macfadyen.[1]

[4] When this lecture was first planned, it was, of course, anticipated that I would be able to come to Edinburgh to address you in person, and to do so in the stunning surroundings of the Royal Society. This was planned for 26 March this year, and I was greatly looking forward to being able to return once more to Scotland. However, that now feels like a lifetime away. COVID intervened, and 26 March ultimately was, in fact, day three of the ‘lockdown’ in Scotland. The pandemic and its consequences appear to have dominated our lives ever since, and have left little room for debate and discussion about some of the other pressing issues facing us as a society – as humanity.

[5] I am therefore doubly grateful to the organisers, not only for having re-arranged this lecture – even if I am only able to be with you by means of the now ubiquitous video link – but also for having persisted in the topic. Thereby, I hope, they have created a little space for us to consider and discuss one of the other great challenges – many would say the greatest challenge – with which humanity is currently confronted: climate change. In this context I will be focusing in particular on the potential, and the limitations, of the Convention’s role in addressing it.

[6] Before I turn to some of the detail of the Court’s case law to date, let us take a step back and consider some of the wider context within which the issue of climate change comes before the Court. Unfortunately this does not, at least at first sight, paint a hopeful picture.

[7] You will, of course, be aware that the 2015 Paris Agreement itself, which lies at the heart of so much of the current international legal and political efforts to combat climate change, contains no substantive provision linking those efforts (and the obligations that States have assumed under the Agreement and the United Nations Framework Convention on Climate Change that underlies it) to human rights. In fact, the only mention of human rights in the Paris Agreement is in its Preamble, in which the States Parties ‘acknowledge’ that:

‘Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity …’.

[8] Two aspects of this are noteworthy in our context:

(1)        the first is that this, the only mention of human rights in the Paris Agreement, is located in the Preamble, despite the fact that Article 2 of an earlier draft contained an express obligation to implement the United Nations Framework Convention on Climate Change ‘on the basis of respect for human rights’.[2] It is reported that this relegation of the reference to human rights was as a result of objections, both express and behind the scenes, raised by a number of states, including a number of States Parties to the European Convention.[3] As a consequence, as a matter of law, it only goes to helping to identify the context and define the object and purpose of the agreement;[4] it creates no legal human rights obligations;

(2)        the second is that even this preambular reference to and enumeration of human rights bears little resemblance to the rights and freedoms enumerated in and protected by the European Convention on Human Rights or any of its protocols.

[9] With that in mind, when considering the text of the European Convention itself – a human rights treaty negotiated in the aftermath of the Second World War and concluded in 1950 – it is perhaps less surprising that, as the Court has repeatedly stated:

‘Neither Article 8 nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such; to that effect, other international instruments and domestic legislation are more pertinent in dealing with this particular aspect.’[5]

[10] Since about 1999, the Parliamentary Assembly of the Council of Europe has repeatedly recommended to the Committee of Ministers that it should remedy this lacuna by drafting either an amendment or an additional protocol to the European Convention, concerning the right of individuals to a healthy and viable environment[6] and/or the recognition of individual procedural rights intended to enhance environmental protection.[7] However, this recommendation has consistently been rejected by the Committee of Ministers, on the basis that

 ‘although the European Convention on Human Rights does not expressly recognise a right to the protection of the environment, the Convention system already indirectly contributes to the protection of the environment through existing Convention rights and their interpretation in the evolving case law of the European Court of Human Rights. … the Committee of Ministers did not consider it advisable to draw up an additional protocol to the Convention in the environmental domain.’.[8]

[11] Nevertheless, the Committee of Ministers entrusted its Steering Committee for Human Rights (‘CDDH’) with the task of conducting work on human rights and the environment, as a result of which the CDDH has compiled a very useful Manual on Human Rights and the Environment,[9] which was first published in 2006 and has since been updated repeatedly.[10] In fact, the terms of reference of the CDDH for 2020–2021 include the specific task to ‘update the Handbook on Human Rights and the Environment and, if appropriate, develop a draft non-binding instrument of the Committee of Ministers (e.g. recommendation, guidelines) recalling existing standards in this field’.[11]

[12] The absence either of a provision in the Convention itself or of an additional protocol providing for either a right of individuals to a healthy and viable environment or the recognition of individual procedural rights intended to enhance environmental protection has not, however, discouraged applicants from seeking to invoke the Convention in the name of environmental protection. In fact, from a search of HUDOC, the Court’s case-law database, it appears that the Strasbourg organs, ie the (now defunct) Commission for Human Rights and the Court of Human Rights, have to date handed down more than 300 decisions and judgments in cases raising environment-related issues. A number of further such cases are currently pending before us, as well as before the national courts.[12] The most prominent climate change case currently pending before the Strasbourg Court is undoubtedly that brought by six Portuguese youths against 33 Member States, alleging that the respondents have violated human rights, and specifically their rights under Articles 2 (right to life), 8 (right to respect for private and family life) and 14 (non-discrimination) by failing to take sufficient action on climate change, and seeking an order requiring them to take more ambitious action. As this case and various others are currently pending before us, you will understand that there are certain limits about how much I can say about them or about where the Court’s case law may go.

[13]  In its response to the Parliamentary Assembly, the Committee of Ministers expressly relied on the ‘indirect contribution’ of existing Convention rights and their interpretation by the Court in the context of environmental law and, more specifically, climate change. So what is that ‘indirect contribution’?

[14] Let us start by looking at the case law under the substantive provisions, before concluding with a look at the procedural provisions, both in the domestic context under Article 6 and under the Convention itself under its Articles 1 and 34.

[15] As long ago as 1978, in its famous Tyrer judgment, the Court ‘recalled’ that ‘the Convention is a living instrument which … must be interpreted in the light of present-day conditions. … the Court cannot but be influenced by the developments and commonly accepted standards in … the member States of the Council of Europe’.[13] This ‘living instrument’ doctrine is a fundamental component of the Court’s approach to the interpretation of the Convention on the basis that ‘the Convention is first and foremost a system for the protection of human rights’ and as such ‘must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the standards to be achieved’.[14]

[16] Although the Court expressly acknowledged, as early as 1991, that ‘in today’s society the protection of the environment is an increasingly important consideration’,[15] it is not always easy to identify the existence and/or content of these ‘commonly accepted standards’ or this ‘evolving convergence’ (in so far as they may be different) – at least at a macro level. By way of example, one need only compare the reluctance of States to commit to a clear linkage between human rights and climate change that we identified earlier, and the view expressed by the dissenting judges in the case of Hatton v United Kingdom.[16] In that case, the Grand Chamber held, by a majority, that, in adopting its 1993 policy on night flights at Heathrow, the Government had not ‘overstepped their [wide] margin of appreciation by failing to strike a fair balance between the right of the individuals affected … to respect for their private life and home and the conflicting interests of others and of the community as a whole’. There had, therefore, been no violation of Article 8. However, in their Dissenting Opinion Judges Costa, Ress, Türmen, Zupančič and Steiner disagreed. Relying on the ‘living instrument’ doctrine, and having referred to the 1972 Declaration of the United Nations Conference on the Human Environment and the EU Charter of Fundamental Rights, they considered that:

‘These recommendations show clearly that the member States of the European Union want a high level of protection and better protection, and expect the Union to develop policies aimed at those objectives. On a broader plane the Kyoto Protocol makes it patent that the question of environmental pollution is a supra-national one, as it knows no respect for the boundaries of national sovereignty. This makes it an issue par excellence for international law – and a fortiori for international jurisdiction. In the meanwhile, many supreme and constitutional courts have invoked constitutional vindication of various aspects of environmental protection – on these precise grounds. We believe that this concern for environmental protection shares common ground with the general concern for human rights.’

[17] That said, when confronted with individuals who are directly and seriously affected by pollution, environmental disasters, occupational illnesses or nuisance resulting from practices and policies adopted, authorised or permitted by the respondent State, the Court has shown itself willing to accept that an issue can arise under Article 8 (the right to respect for private and family life and the home).

[18] In order to engage Article 8, however, ‘the adverse effects of environmental pollution must attain a certain minimum level’; the assessment of that minimum being, by definition

 ‘relative and depend[ing] on all the circumstances of the case, such as the intensity and duration of the nuisance, and its physical or mental effects. The general context of the environment should also be taken into account. There would be no arguable claim under Article 8 if the detriment complained of was negligible in comparison to the environmental hazards inherent to life in every modern city’.[17]

As Judge Pavli noted in his Partly Dissenting Opinion in Hudorovič and Others v Slovenia,[18]

 ‘What matters is whether the environmental hazard has caused “significant impairment” to one’s ability to enjoy one’s home, considering aspects such as the intensity and duration of the nuisance …, and its physical and mental effects on health and quality of life’.

Nevertheless, the threshold is not such as to exclude claims  not ‘seriously endangering their health’.[19]

[19] It is perhaps most relevant in relation to any potential climate change litigation that, in these cases, the Court has not limited itself to analysing the complaint in terms of an ‘interference by a public authority’, ie a negative obligation, which had to be justified in accordance with paragraph 2 of Article 8. It has frequently analysed such complaints by reference to a positive obligation on the State to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8. Such a positive obligation may involve, among others, the adoption, maintenance and operation of an appropriate regulatory regime. No matter how a complaint is ultimately analysed, the Court has confirmed that ‘the applicable principles regarding … the balance between the rights of an individual and the interests of the community as a whole are broadly similar’,[20] but that ‘where the State is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State's margin of appreciation’.[21]

[20] The ‘margin of appreciation’ left to States in the sphere of environmental protection has generally been ‘wide’, leaving the Court to consider whether there has been a ‘manifest error of appreciation by the national authorities in striking a fair balance between the competing interests of different private actors’. Due to the complexity of the issues involved, the Court has seen its role primarily as a subsidiary one, limited to examining first whether the decision-making process was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8.[22] Only in exceptional circumstances will the Court go beyond this line and revise the material conclusions of the domestic authorities.[23] That said, in its recent judgment in Cordella and Others v Italy,[24] the Court did not describe the margin of appreciation as being ‘wide’; instead, it referred to the State enjoying a ‘certain’ margin of appreciation. Whether this signifies a greater willingness on the part of the Court to engage with national policy remains to be seen.

[21] Consequently, where the Court has found a violation of Article 8, this has frequently been as a result of a failure by authorities to comply with some aspect or other of the domestic legal regime – such as a failure of the licensing regime^[25] or a failure to comply with domestic freedom of information legislation.^[26] Nevertheless, the Court has also made clear that compliance with domestic law does not per se resolve the issue in favour of the State; domestic legality is only ‘one of many aspects which should be taken into account in assessing whether the State has struck a “fair balance” in accordance with Article 8 § 2’.^[27]

[22] When confronted with environmental disasters that have caused, or threatened to cause, loss of life (such as a methane explosion in a large rubbish tip,[28] a mudslide[29] or heavy flash floods caused by the sudden release of water from a reservoir without any warning[30]), the Court has also found – frequently in addition to Article 8, and sometimes Article 1 of the First Protocol (the protection of property) – that Article 2 (the right to life) was engaged and had been breached.

[23] The Grand Chamber helpfully summarised its case law on the obligations arising under Article 2, beyond the negative obligation to refrain from the ‘intentional’ taking of life, in its recent judgment in Nicolae Virgiliu Tănase v Romania,[31] in the context of a serious road traffic accident. These obligations include, most relevantly in the present context, a primary substantive procedural obligation to put in place an appropriate legislative and administrative framework including the making of regulations to compel institutions, whether private or public, to adopt appropriate measures for the protection of people’s lives. In these cases, Article 2 may well apply despite the fact that there is no direct State responsibility for placing the applicant’s life in danger.[32]

[24] Article 2 also imposes the further substantive positive obligation to take preventive operational measures to protect an identified individual from another, or even from themselves – the so-called ‘Osman duty’. However, the Court has significantly circumscribed this obligation. On one hand, the Court has stressed that this obligation ‘must be interpreted in a way that does not impose an impossible or disproportionate burden on the authorities’ and, on the other, it has made its application subject to the requirement that it has to be established that ‘the authorities knew or ought to have known at the time of a real and immediate risk to the life of an identified individual or individuals’.[33] Once triggered, however, this duty requires the State to take measures within the scope of its powers that, judged reasonably, might be expected to avoid the identified risk.

[25] In light of what I have said so far in relation to the substantive rights protection under the Convention, the Secretary General of the Council of Europe, the President of the Committee of Ministers, the President of the Parliamentary Assembly, and the President of the European Court of Human Rights were probably right when they said, in their joint statement of 29 January 2020 to launch the 70th anniversary of the European Convention on Human Rights, that:

‘The Convention is a living instrument, which has repeatedly proved itself capable of adapting to new human rights challenges …

 

This adaptability will be crucial in helping the continent to face emerging challenges to individuals’ rights linked to advances in technology, for example, and threats to the natural environment.’[34]

[26] However, let us now turn to the procedural aspects of the Court’s case law in this area.

[27] As the Court made clear in Taşkın and Others v Turkey,[35] in the context of environmental law, the procedural obligations consist of three separate obligations:

‘Where a State must determine complex issues of environmental and economic policy, the decision-making process must firstly involve appropriate investigations and studies in order to allow them to predict and evaluate in advance the effects of those activities which might damage the environment and infringe individuals’ rights and to enable them to strike a fair balance between the various conflicting interests at stake.^[[36]] The importance of public access to the conclusions of such studies and to information which would enable members of the public to assess the danger to which they are exposed is beyond question.^[[37]] Lastly, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process’.[38]

[28] The specific article of the Convention that is invoked is of lesser relevance in this context. After all, as the Court noted, in the context of dangerous activities, the scopes of the positive obligations under Articles 2 and 8 largely overlap. The positive obligation under Article 8 requires national authorities to take the same practical measures as those expected of them in the context of their positive obligation under Article 2 of the Convention.[39]

[29] In what may be seen as a surprising dearth of references to, and reliance on, related international treaties, it is in identifying and developing these so-called ‘participatory rights’ that the Court has most clearly drawn on support and inspiration from other international instruments in the field of environmental law – especially from the 1998 United Nations Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (‘the Aarhus Convention’).[40] After all, the Court has elsewhere accepted ‘the existence of a joint European and international stance on the need to protect access to the cultural heritage’, on the basis that

‘the provisions of the Convention cannot be interpreted and applied in a vacuum. Despite its specific character as a human rights instrument, the Convention is an international treaty to be interpreted in accordance with the relevant norms and principles of public international law, and, in particular, in the light of the Vienna Convention on the Law of Treaties of 23 May 1969 … Thus the Court has never considered the provisions of the Convention to be the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, account should be taken, as indicated in Article 31§3(c) of the Vienna Convention, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights’.[41]

[30] However, it is also in this – procedural – context that some of the main difficulties are likely to arise in relation to climate change litigation.

[31] Looking at the domestic context first, in the judgment just referred to, the Court made it clear that ‘individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process’. However, when it comes to asserting or defending that right by reference to Article 6 of the Convention (the right to access to court and to a fair hearing), the dominant line of the Court’s case law makes it clear that, in fact, challenges by individuals to decisions of major environmental impact do not engage an individual’s ‘civil rights and obligations’ and, therefore, Article 6 is not applicable. Article 6 will apply only where an applicant can show that it exposes them personally to a danger that was not only serious but also specific and, above all, imminent.[42] One or two decisions  appear to have been more accommodating but, although they do not appear to have had any lasting impact on the underlying approach of the Court,[43] they have left the case law in a degree of uncertainty. As a result, on occasion, the Court has sought to draw a distinction between, on one hand, ‘the aspect of the dispute relating to defence of the public interest’ that did not concern a ‘civil right’ that the applicants could have claimed on their own behalf and, on the other, ‘the repercussions of the [decision] on their lifestyles and properties’.[44]

[32] The only exception to this approach – if, in fact, it is an exception – can be found in a line of cases all of which happened to be against Turkey and in which the applicants had already successfully challenged the original measure before the highest domestic courts on the basis of the risk that they posed to their interests. Their complaint before the Strasbourg Court was, in effect, that, in breach of Article 6(1), those final judgments in their favour either had not been implemented or had been ignored by the national authorities.[45]

[33] The same approach is, in fact, reflected in the case law of the Court in relation to both the substantive rights and the admissibility of an application to the Court under Article 34 of the Convention.

[34] In relation to the substantive rights under Articles 2 and 8 of the Convention, and under Article 1 of the First Protocol, the Court has also made it clear that although

‘Article 8 has been relied on in various cases involving environmental concern, … it is not violated every time that environmental deterioration occurs: no right to nature preservation is as such included among the rights and freedoms guaranteed by the Convention …. Thus, in order to raise an issue under Article 8 the interference must directly affect the applicant's home, family or private life’.[46]

[35] In relation to the right of individual application before the Court, Article 34 of the Convention provides that the Court ‘may’ receive application only from an applicant ‘claiming to be the victim of a violation … of the rights set forth in the Convention’. This requirement has always been interpreted by the Court

‘autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act. In addition, in order for an applicant to be able to claim to be a victim of a violation of the Convention, there must be a sufficiently direct link between the applicant and the harm which they consider they have sustained on account of the alleged violation’.[47]

[36] This focus on a serious, specific and imminent risk to an applicant, of course, poses a very real obstacle to litigation brought by public interest organisations and non-governmental organisations (‘NGOs’) unless they can show, for example. that they were set up for the specific purpose of defending their members’ interests before the courts, and that those members were directly concerned by the decision at issue,[48] or that a domestic judgment in their favour had been not been executed.[49]

[37] This is not, however, an inadvertent development in the Court’s case law, or an unintended limitation on access to the Court. Quite the contrary: the Court’s consistent case law, under Article 34 as well as under Article 6 of the Convention, is that

‘ the Convention does not allow complaints in abstracto alleging a violation of the Convention. The Convention does not provide for the institution of an actio popularis, meaning that applicants may not complain against a provision of domestic law, a domestic practice or public acts simply because they appear to contravene the Convention. In order for applicants to be able to claim to be a victim, they must produce reasonable and convincing evidence of the likelihood that a violation affecting them personally will occur; mere suspicion or conjecture is insufficient in this respect’.[50]

Currently, therefore, there appears to be little scope for the application of the precautionary principle.[51]

[38] In contrast, it is perhaps worth noting that a request for an advisory opinion under Protocol 16 is not – as a matter of Convention law – subject to the admissibility requirements of Article 34. Protocol 16 enables the nominated ‘highest courts’ of a party to that protocol to ask the Court for an advisory opinion on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention. Currently, the UK has neither signed nor acceded to this Protocol.

[39] The actio popularis/individual victim dilemma confronting the Court has also troubled the domestic courts – and clearly continues to do so – without a clear consensus becoming apparent. By way of example, in its Urgenda judgment the Dutch Supreme Court overcame the difficulty under Article 34 by concluding that the NGO in question

‘represents the interests of the residents of the Netherlands with respect to whom the [positive obligation under Articles 2 and 8] applies, can invoke this obligation. After all, the interests of those residents are sufficiently similar and therefore lend themselves to being pooled, so as to promote efficient and effective legal protection for their benefit’.[52]

In contrast, in its recent judgment in Friends of the Irish Environment, the Irish Supreme Court has again endorsed an approach under the Irish constitution akin to that adopted by the Court, namely that ‘a plaintiff [needs] to be able to demonstrate that they have been affected in reality or as a matter of fact by virtue of the measure which they seek to challenge on the basis that it breaches rights’.[53] In its decision of 5 May 2020, in the case of the Union of Swiss Senior Women for Climate Protection,[54] the Swiss Federal Court adopted a similar approach. That said, in the Irish case the Chief Justice went on to say that ‘[t]he circumstances in which it is permissible to accord standing outside the bounds of that basic principle must necessarily be limited and involve situations where there would be a real risk that important rights would not be vindicated unless a more relaxed attitude to standing were adopted’.

[40] Again, as the applicants in the Swiss case have indicated their intention to bring their case before the Strasbourg court, I will not say any more about it.

[41] However, I should draw attention to a connected point that arises from the Court’s jurisprudence, which is the risks – perceived or real – to the separation of powers (or, at international level, to the principle of subsidiarity) and of the ‘judicialisation of public administration’.^[55] In Athanassoglou the Court expressly noted, and rejected, the suggestions that it was possible to ‘to derive from Article 6 § 1 of the Convention a remedy to contest the very principle of the use of nuclear energy, or at the least a means for transferring from the government to the courts the responsibility for taking, on the basis of the technical evidence, the ultimate decision on the operation of individual nuclear power stations’.^[56] On the contrary, the Court underlined that the decision ‘how best to regulate the use of nuclear power is a policy decision for each Contracting State to take according to its democratic processes. Article 6 § 1 cannot be read as dictating any one scheme rather than another’.^[57]

[42] This concern is also clearly reflected in the reasoning of the majority of the US Court of Appeals for the Ninth Circuit in its decision in Juliana v United States,[58] directing the dismissal of an action in relation to climate change-related injuries. The majority opinion stated that

‘[a]s the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches. … These decisions range, for example, from determining how much to invest in public transit to how quickly to transition to renewable energy, and plainly require consideration of “competing social, political, and economic forces,” which must be made by the People’s “elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country”.’.[59]

[43] Connected to this is yet a further potential problem that may be said to have been highlighted by the decision of the CJEU in Case C-752/18 Deutsche Umwelthilfe eV v Freistaat Bayern.[60] That is a risk arising if the executive or the State fails or refuses to implement the judgments handed down – a risk to the institutional balance, to the standing of the Court in the European human rights system and, ultimately, to the rule of law. In the Deutsche Umwelthilfe case, the CJEU was asked by the Higher Administrative Court of Bavaria

‘whether EU law … must be interpreted as meaning that, in circumstances in which a national authority persistently refuses to comply with judicial decisions enjoining it to perform a clear, precise and unconditional obligation [to take the necessary measures to comply with the prescribed nitrogen dioxide emission levels] empowers or even obliges the national court having jurisdiction to order the coercive detention of office holders involved in the exercise of official authority’.[61]

[44] Before concluding, let me raise one final issue that will almost inevitably arise in climate change-related litigation as a result of the interplay between: (1) the fact that, as the UN Framework Convention on Climate Change records, climate change is a global problem that needs to be solved globally and that emissions of greenhouse gases take place from the territories of all countries, all countries are affected and measures will have to be taken by all countries; and (2) the (perhaps old-fashioned) focus of the Convention, as set out in its Articles 1, 19 and 34, on the individual State as a respondent, and its obligations to ‘secure to everyone within its jurisdiction’ the rights under the Convention. Again, this is currently before the Court in the context of the case brought recently by six Portuguese youths against 33 States Parties to the Convention, so there is, therefore, very little that I can say on it other than to identify the issue and draw attention to some of the relevant case law.

[45] In relation to an application concerning the destruction of a site of historic and scientific interest brought against Turkey, Austria and Germany, the Court indicated that, as all measures were taken in, and all relevant legal proceedings had been before, the courts of Turkey, the fact that Austrian and German companies were directly involved in the actual destruction was not per se sufficient to bring a case against those States. The application against them was rejected as inadmissible ratione personae by reference to the Court’s established case law to the effect that the States’ jurisdiction was primarily territorial and that extra-territorial jurisdiction would be found only exceptionally (namely in cases of State-agent control or effective control over an area outside their territory).[62]

[46] It has repeatedly been suggested that the Court might be able to resolve this issue by reference to the concept of State responsibility and the recognition, in Article 47 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, that ‘where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act’. Again, no doubt arguments to this effect may well be developed before us in an appropriate case, but it is worth noting that the Court has so far taken the position that ‘the test for establishing the existence of “jurisdiction” under Article1 of the Convention has never been equated with the test for establishing a State’s responsibility for an internationally wrongful act under general international law’, the latter being logically dependent upon the former having been established.[63]

[47] That said, in a more recent development in the context of cross-border crime, in emphasising the Convention’s ‘special character as a treaty for the collective enforcement of human rights and fundamental freedoms’, the Court has indicated that this special character ‘may, in some circumstances, imply a duty for Contracting States to act jointly and to cooperate in order to protect the rights and freedoms they have undertaken to secure within their jurisdiction’.[64] It remains to be seen how far this duty to cooperate will be confined to the context of cross-border crime and the consequent procedural obligation to investigate arising under Article 2 of the Convention.

[48] Having taken you on this tour of the Court’s existing case law and, I hope, identified some of the opportunities and challenges in using the European Court and the Convention of Human Rights as a forum for climate change litigation, let me finish by quoting what the current President of the Court, Judge Spanó, said at a recent conference held as part of the celebrations of the 70th anniversary of the Convention:

‘the already established case-law in environmental cases before the Court demonstrates a certain conceptual trajectory, the logical extension of which remains to be determined by the Court using its traditional methodological approaches. … we are present in a transformative moment in human history, a moment of planetary impact and importance. No one can legitimately call into question that we are facing a dire emergency that requires concerted action by all of humanity. For its part, the European Court of Human Rights will play its role within the boundaries of its competences as a court of law forever mindful that Convention guarantees must be effective and real, not illusory’.

 

 

 

[1]                Available at: https://www.scottishlawreports.org.uk/publications/macfadyen-lectures/what-are-judges-for/, § [B].

[2]                See the Draft Paris Agreement, Draft conclusions proposed by the Co-Chairs of 5 December 2015 (FCCC/ADP/2015/L.6. Available at: https://unfccc.int/files/bodies/awg/application/pdf/draft_paris_agreement_5dec15.pdf [accessed 21 October 2020]).

[3]                See Keina Yoshida and Joana Setzer, ‘The trends and challenges of climate change litigation and human rights’ [2020] EHRLR 140.

[4]                Article 31(2) Vienna Convention on the Law of Treaties; see also Alan Boyle, ‘Climate Change, the Paris Agreement and human rights’ (2018) 67 ICLQ. 759.

[5]                Kyrtatos v Greece, No 41666/98, § 52, ECHR 2003 VI (extracts); see, most recently, Cordella and Others v Italy, Nos 54414/13 and 54264/15, § 100, 24 January 2019.

[6]                Such a right is, of course, contained in Article 11 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (‘the Protocol of San Salvador’), which entered into force on 16 November 1999 and formed one of the ‘building blocks’ of the Advisory Opinion of the Inter-American Court of Human Rights of 15 November 2017, The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity – Interpretation and Scope of Articles 4(1) and 5(1) of the American Convention on Human Rights) (Advisory Opinion OC-23/18, Inter-Am Ct HR, (Ser A) No 23).

[7]                See, eg, Recommendation 1431 (1999), Future action to be taken by the Council of Europe in the field

of environment protection; Recommendation 1614 (2003), Environment and human rights; Recommendation 1883 (2009), Challenges posed by climate change; and Recommendation 1885 (2009), Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment.

[8]                Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment, Reply to Recommendation, Doc 12298, 19 June 2010, § 9.

[9]Available at: https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806962d1 [accessed 21 October 2020].

[10]              In 2011 and 2012.

[11]              Available at: https://rm.coe.int/mandat-2020-2021-en/1680994838 [accessed 21 October 2020], § (v).

[12]              See, eg, the recent decisions of the Dutch Supreme Court in the Urgenda case. (available at: https://www.urgenda.nl/wp-content/uploads/ENG-Dutch-Supreme-Court-Urgenda-v-Netherlands-20-12-2019.pdf [accessed 21 October 2020]), the judgment of the Irish Supreme Court in Friends of the Irish Environment v Government of Ireland and Others [2020] IESC 49 (31 July 2020) (available at: https://www.bailii.org/ie/cases/IESC/2020/2020IESC49.pdf [accessed 21 October 2020]) and judgment of the Swiss Federal Court in Verein KlimaSeniorinnen Schweiz (5 May 2020).

[13]         Tyrer v United Kingdom, 25 April 1978, § 31, Series A No 26.

[14]         Christine Goodwin v United Kingdom [GC], No 28957/95, § 74, ECHR 2002‑VI.

[15]         Fredin v Sweden (No 1), 18 February 1991, § 48, Series A No 192.

[16]         Hatton and Others v United Kingdom [GC], No 36022/97, ECHR 2003‑VIII.

[17]              Fadeyeva v Russia, No 55723/00, § 69, ECHR 2005‑IV; see also Dzemyuk v Ukraine, 42488/02, § 78, 4 September 2014.

[18]              Nos 24816/14 and 25140/14, 10 March 2020, referring to Udovičić v Croatia, No 27310/09, §139, 24 April 2014; and see Fadeyeva v Russia, cited above (n 17), § 69.

[19]         López Ostra v Spain, 9 December 1994, § 51, Series A No 303‑C; see also Tătar v Romania, No 67021/01, § 85, 27 January 2009.

[20]         Fadeyeva v Russia, cited above (n 17), § 94.

[21]              Ibid, § 96.

[22]              See Buckley v United Kingdom, judgment of 25 September 1996, Reports 1996-IV, pp 1292–93, §§ 76–77; and Fadeyeva v Russia, cited above (n 17), § 105.

[23]              See Taşkın and Others v Turkey, No 46117/99, § 117, ECHR 2004-X; and Fadeyeva v Russia (cited above, n 17), § 105.

[24]              Nos 54414/13 and 54264/15, § 158, 24 January 2019.

[25]         López Ostra v Spain, cited above (n 19).

[26]              Guerra and Others v Italy, 19 February 1998, Reports of Judgments and Decisions 1998-I.

[27]              Fadeyeva v Russia, cited above (n 17), § 98.

[28]              Öneryıldız v Turkey [GC], No 48939/99, 30 November 2004.

[29]              Budayeva and Others v Russia, Nos 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 20 March 2008.

[30]              Kolyadenko and Others v Russia, Nos 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, 28 February 2012.

[31]         Nicolae Virgiliu Tănase v Romania [GC], No 41720/13, 25 June 2019.

[32]              Ibid, § 135.

[33]              Ibid, § 136.

[34]              Available at: https://www.coe.int/en/web/portal/-/70th-anniversary-of-european-convention-on-human-rights-a-convention-for-the-people [accessed 21 October 2020].

[35]         No 46117/99, § 119, ECHR 2004‑X; see also Giacomelli v Italy, No 59909/00, § 83, ECHR 2006‑XII; and Tătar v Romania, No 67021/01, § 113, 27 January 2009.

[36]              See also see Hatton and Others, cited above (n 16), § 128.

[37]              See also, mutatis mutandis, Guerra and Others v Italy, cited above (n 26), § 60; and McGinley and Egan v United Kingdom, judgment of 9 June 1998, Reports 1998‑III, § 97.

[38]              See, mutatis mutandis, Hatton and Others, cited above (n 16), § 127.

[39]              See Budayeva and Others, cited above (n 29), § 133; Kolyadenko and Others v Russia, cited above (n 30), § 216; and Brincat and Others v Malta, Nos 60908/11 and four others, § 102, 24 July 2014.

[40]              Di Sarno and Others v Italy, No 30765/08, § 107, 10 January 2012.

[41]              Ahunbay and Others v Turkey, No 6080/06, § 23, 29 January 2019, even though it went on to declare the application inadmissible ratione materiae on the basis that it nevertheless did not detect a European consensus that this gave rise to a universal individual right to the protection of a given cultural heritage.

[42]              See Balmer‑Schafroth and Others v Switzerland, 26 August 1997, § 40, Reports 1997‑IV; Athanassoglou and Others v Switzerland [GC], No 27644/95, §§ 46‑55, ECHR 2000‑IV; and Ivan Atanasov v Bulgaria, No 12853/03, § 92, 2 December 2010.

[43]              See, eg, Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox et Mox v. France, No 75218/01, 28 March 2006.

[44]              Gorraiz Lizarraga and Others v Spain, No 62543/00, §§ 46 – 47, ECHR 2004‑III; see also L’Erablière ASBL v Belgique, No 49230/97, 24 February 2009.

[45]              Taşkın and Others v Turkey, cited above (n 23); Okyay and Others v Turkey, No 36220/97, 12 July 2005; and Bursa Barosu Başkanlığı and Others v Turkey, No 25680/05, 19 June 2018; see also Dissenting Opinion of Judge Eicke in Sine Tsaggarakis AEE v Greece, No 17257/13, 23 May 2019.

[46]              Fadeyeva v Russia, cited above (n 17), § 68.

[47]         Gorraiz Lizarraga and Others v Spain, cited above (n 44), § 35; see also, among other authorities, Tauira and Others v France, No 28204/95, Commission decision of 4 December 1995, Decisions and Reports (DR) 83-B, p 112; Association des amis de Saint-Raphaël et de Fréjus and Others v France, No 38192/97, Commission decision of 1 July 1998, DR 94-B, p 124; Comité des médecins à diplômes étrangers v France and Others v France (dec), Nos 39527/98 and 39531/98, 30 March 1999.

[48]              Gorraiz Lizarraga and Others v Spain, cited above (n 44), § 39.

[49]              Bursa Barosu Başkanlığı and Others v Turkey, cited above (n 45).

[50]         Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania [GC], No 47848/08, § 101, ECHR 2014 and the case law cited therein (in relation to Article 34); and Gorraiz Lizarraga and Others, cited above (n 44), § 46; and L’Erablière ASBL v Belgique, cited above (n 44), § 25 (in relation to Article 6).

[51]              See the Dissenting Opinion of Judge Pettiti (joined by six of his colleagues) in Balmer-Schafroth v Switzerland, cited above (n 42), in which he expressed the wish that it would be ‘the judgment of the European Court that caused international law for the protection of the individual to progress in this field by reinforcing the “precautionary principle” and full judicial remedies to protect the rights of individuals against the imprudence of authorities’.

[52]              ECLI:NL:HR:2019:2007, § 5.9.2.

[53]              Judgment of Mr Justice Clarke, Chief Justice, at § 7.21.

[54]              Verein KlimaSeniorinnen Schweiz, 1C_37/2019.

[55]              A risk first identified in a different context in the Joint Dissenting Opinion of Judges Ryssdal, Bindschedler-Robert, Lagergren, Matscher, Sir Vincent Evans, Bernhardt and Gersing in Feldbrugge v The Netherlands, 29 May 1986, Series A, No 99 at § 15 and more recently by the UKSC in Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36.

[56]              Athanassoglou and Others v Switzerland, cited above (n 42), para 53.

[57]              Ibid, para 54.

[58]              Of 17 January 2020 (available at: https://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/18-36082.pdf [accessed 22 October 2020]).

[59]              Ibid, p 25.

[60]              ECLI:EU:C:2019:1114 (19/12/19); see also the subsequent order of the Administrative Court (Verwaltungsgericht) Stuttgart in Case No Az: 17 K 5255/19 (21 January 2020).

[61]              Ibid, § 29.

[62]              Ahunbay and Others v Turkey, Austria and Germany (Dec), No 6080/06, § 94, 21 June 2016.

[63]              Jaloud v The Netherlands [GC], No 47708/08, § 154, ECHR-2014; Catan and Others v Republic of Moldova and Russia [GC], No 48787/99, § 115, ECHR 2004-VII.

[64]              Güzelyurtlu and Others v Cyprus and Turkey [GC], No 36925/07, § 232, 29 January 2019.