Curb Your Enthusiasm (Not Your Emissions): Analysis of the ECtHR Rulings on State Responsibility for Climate Change

[Ignacio Portela Giráldez is a Ph.D. student researching novel climate litigation pathways under the UN Convention on the Law of The Sea. He is a teacher of International and Political Studies at the University of New South Wales (Canberra) and lecturer in International Environmental Protection at the Open University of Catalonia.]

The European Court of Human Rights (ECtHR) has finally ruled on three long awaited climate change cases, all hailed as a significant step forward on State responsibility for environmental protection through human rights litigation: Carême v. France, Duarte Agostinho v. Portugal, and KlimaSeniorinnen Verein v. Switzerland. The latter case was, notably, brought not only by four individuals but also by an association representing senior citizens.

However, it is important to put these decisions in perspective.  Yes, the ECtHR has finally ruled on a case about climate change. Yes, it has declared that all 46 State Parties to the Council of Europe must protect their citizens from the effects of climate change, and failing to do so violates human rights. These results are significant.  However, these cases may not be the breakthrough some have suggested.

This blog post aims to unpack some of the shortcomings of these judgments. Specifically, regarding the standing of applicants, the heightened victim-status criteria, the strict interpretation of extraterritorial jurisdiction, the way in which the margin of appreciation has been interpreted, and the limited prescriptive nature of the measures ordered by the Court. It will also be argued that the Court’s findings are so closely tailored to these cases, that the rulings are largely confined to their facts. They do not set general precedents for future cases. 

Who is Considered a Victim by the Court and why were Most Applicants Rejected Standing?

All three ruling were delivered on the same day. In each case the applicants had argued that their respective governments’ inaction regarding climate change amounted to violations of article 2 (right to life) and 8 (right to private and family life) of the Convention. Applicants sought orders from the ECtHR that their Governments implementing stricter measures to mitigate climate change. Carême v France and Duarte Agostinho v. Portugal cases were considered inadmissible in unanimous decisions; and so were the four individual applicants of KlimaSeniorinnen. The reason? The ECtHR considered that no individual applicant was a “victim” under the Convention. (This left only the association in KlimaSeniorinnen with standing, a point returned to below).

First all domestic remedies must be exhausted before filing a claim at the ECtHR (art. 35 of the Convention). Duarte Agostinho was dismissed on these grounds.

The Court has consistently taken a strict stance on who qualifies a victim of a human rights violation under the Convention and made no exception here. Only individual applicants who have directly suffered specific harm are victims. No actio popularis or claims filed in the general interest are permitted. 

Victims must prove a direct connection between the harm they have suffered and the actions or inactions by the Government (Mansur Yalcum and other v. Turkey). The ECtHR can only act if the ruling is necessary to ensure the applicant’s individual protection: and only if this lack was caused by the defendant (para. 487). Environmental harm requires a direct and significant negative effect on an individual’s life or private or family sphere (para. 487 and 515). A “general damage to the environment” is insufficient (Di Sarno case and KlimaSeniorinnen case paras. 446 and 472). None of these could be proven by any individual applicant. Carême was dismissed on these grounds, as was the case of the four individual applicants in KlimaSeniorinnen were dismissed on these grounds. 

This begs the question: if four elderly women particularly vulnerable to climate change do not meet the criteria, who would? 

How and why was the Association Granted Standing? 

Where all individual applicants failed, the association KlimaSeniorinnen Verein succeeded, though on very narrow grounds. 

The ECtHR expressly recalled associations are generally not granted standing if not directly affected by the harm (para. 475). The ECtHR, however, took two things into consideration: the victim status of the individuals represented by the association, and the legal standing of the association acting on their behalf (para. 496).

The ECtHR found that the association met all the necessary criteria (para. 524), and also took into consideration Switzerland’s pledges in the Aarhus Convention (paras. 501and 526). This Convention requires states to provide access to justice in environmental matters, including review of certain government decision-making processes, and grants associations special standing in such cases (Article 9).

Why did this make a difference? First, the ECtHR considered the standing of associations under the Aarhus Convention was a procedural device that ensured direct victims could exercise their rights in court. Second, the possible standing of associations was only relevant as all other legal venues had been blocked in Switzerland (para. 477 and 523). This amounted to a violation of article 6.1, as regards access to justice (para. 638), and thus standing was granted. The association was allowed to proceed, but only regarding article 8 (right to private and family life), as associations cannot invoke article 2 (right to life).

A Limiting View of Positive Obligations: Carbon Budgets

 The ECtHR held that to uphold article 8, States must effectively protect individuals from the adverse effects climate change has on their lives, health and well-being and adopt and apply mitigating regulations. This obligation flows from the direct relationship between the enjoyments of the rights of the convention and climate change (paras. 435, 519 and 545). 

While this is significant, the connection between human rights and the environment was already established in the Tătar case (para. 112). In KlimaSeniorinnen, the Court took a slightly different approach. The ECtHR considered Switzerland had failed to protect these rights in two ways. One, Switzerland lacked a carbon budget that set a comprehensive GHG emissions reduction plan. Two, Switzerland had failed to meet its previous self-set targets. In legal terms, the Government had exceeded its “margin of appreciation”, and hence, infringed article 8. 

The ruling clarifies that States operate within two ‘margins of appreciation’ regarding climate change. First, a narrow one: there is an obligation to set emission reduction targets through ‘carbon budgets’. Second, a wide one, in the discretion accorded States in designing a policy to meet their self-imposed targets. 

Simply put, KlimaSeniorinnen ruled that States must have a carbon budget, but the Court has no role in supervising its effectiveness or the methodology adopted. Not having a carbon budget is what is considered a failure to fulfil the positive obligation under under article 8, not its efficacy. 

A word of caution is required, as a regulatory gap could be detected here. 

First, the ruling only requires a States to select its preferred methodology in determining its ‘fair share’ contribution to reducing GHG emissions (para. 360). This is, basically, a formal requirement, not a substantive one. The wide margin given to states potentially allows them to enact less stringent policies as different methodologies used to calculate a ‘fair share’ produce vastly different outcomes. 

Second, even the positive obligation to set a carbon budget is too generous. Carbon budgets are already widespread, and it is hard to find any major emitter that does not have such an emissions reduction plan. It is precisely their ineffectiveness that has been the focus of climate litigation. Moreover, there is no consensus on what constitutes a “carbon budget”. As Hilson argues, it is perfectly possible to consider that the European Union (Regulation (EU) 2021/1119) and the United Kingdom (Climate Change Act 2008) already put such regulatory framework in place. If so, most State Parties would already be acting within their margins of appreciation and fulfilling their positive obligations. As the ECtHR will not assess their effectiveness, a future case against any EU State or the UK based on KlimaSeniorinnen seems unlikely. The possible exception is Norway, the only State Party without a carbon budget as of 2023. 

What is the Extraterritorial Jurisdiction of the ECtHR and why is Not Possible Here?

In Duarte Agostinho, the applicants were six youths who sought to bring a case against their home state of Portugal and 32 other Council of Europe states. In respect of the latter, their claim was necessarily extraterritorial. While their standing was denied for the reasons outlined above, their bid to expand the Court’s extraterritorial jurisdiction was also rejected. 

Under the Convention, the term jurisdiction defines the area in which a State must protect, promote and respect human rights (art. 1). This is usually confined to national borders. The ECtHR has accepted extraterritorial application of the Convention if States hold “effective control over a foreign territory”, or State agents have control over individuals on such territory (Chriagov and others v. Armenia, Cyprus v. Turkey, Manitaras and Others v. Tukey, etc). 

Duarte Agostinho challenged this approach by  arguing that, given the diffuse trans-boundary nature of climate change, control over the source of emissions should be the decisive factor regarding jurisdiction. The ECtHR did acknowledge the causal relationship between GHG emissions on the territory of a State, and their adverse impact on the human rights of people abroad. However, it found these were insufficient grounds for expanding its established approach to extraterritorial jurisdiction. The alternative would be that any person, anywhere in the world, could potentially sue any State Party for their contributions to climate change. This would turn the Convention into a global climate change treaty, exceeding its intended scope. 

According to Murcot, Tigre and Zinnerman, the ECtHR approach to State responsibility and jurisdiction is idiosyncratic. For example, the Inter-American Court of Human Rights places the focus on the control over the source of pollution in transboundary environmental harm. That said, as Abel points out, foreign victims can still potentially file a claim for such harm before State Parties’ domestic courts. 

Limited Binding Force and Execution of the Ruling

When the ECtHR finds a State in breach of the Convention, it orders a set of measures that must be adopted domestically to redress the situation, subject to supervision by the Committee of Ministers (art. 46). Notably, in KlimaSeniorinnen, the Court did not impose on Switzerland any specific measures to comply with the ruling, given the “complex nature of climate change” (para. 657). This further limits the significance and impact of the decision.

Conclusion and Ways Forward

KlimaSeniorinnen represents a limited victory for human rights protection regarding environmental degradation. However, its wider applicability seems restricted. First, each of the three cases set a high threshold for victim status. The exception providing locus standi to associations is only available on very strict grounds. Second, States’ margin of appreciation in implementing positive obligations under article 8 may be too generous to be effective. The only substantive obligation is to have a carbon budget in place, regardless of its effectiveness. Third, the ECtHR declined to take any more ambitious interpretation of extraterritorial jurisdiction as regards transboundary environmental harm. Finally, the only successful ruling, KlimaSeniorinnen, is toothless. It lacks any enforcement and supervision mechanism. 

Taken together, these factors greatly limit potential replicability of these rulings. These shortcomings, however, should not be interpreted as a failing but as a warning. Time and again, the ECtHR has consistently pushed back against any attempts to broaden its scope. The existential threat of climate change, the ECtHR warns, should not be used as a justification to push of the Court to act beyond its intended purpose. 

Put another way, the superficial success in KlimaSeniorinnen actually sheds most light on how limited human rights-based litigation is as a judicial pathway in addressing climate change.