On behalf of the European Network of National Human Rights Institutions (ENNHRI), Adele Matheson Mestad, Director of the Norwegian National Human Rights Institution held the following statement before the Grand Chamber of the European Court of Human Rights, in the case Duarte Agostinho and Others v. Portugal and 32 Others.
Madam President, Members of the Court,
The climate crisis is at its core a human rights crisis.
ENNHRI1ENNHRI is a network of over 40 National Human Rights Institutions, mandated by law to protect and promote human rights in accordance with the UN Paris Principles. respectfully submits that it is within the well-settled jurisprudence of this Court to review whether appropriate national frameworks are in place to reduce emissions that fundamentally threatens lives and homes.
Children and young people have little democratic influence concerning climate change but will carry a disproportionate burden of its impacts.2IPCC, AR6 WGII, Overarching Frequently Asked Questions and Answers, 28 February 2022, (q) 3 at p. 4-5 Thiery et al., “Intergenerational inequities in exposure to climate extremes,” Science 374, no. 6564 (2021). There is now a real risk of triggering irreversible tipping points and breaches of adaptation limits beyond 1.5 degrees.3IPCC, AR6 Synthesis Report: Climate Change 2023, Summary for Policymakers, paras. B.4.2 and B.4.3 and Longer report para 3.1.3; Mckay et al., “Exceeding 1.5°C global warming could trigger multiple climate tipping points,” Science 377, no. 6611 (2022); World Climate Research Programme et al. 10 New Insights in Climate Science, 10.11.2022, pp. 13–17. In plain words, a hot-house Earth with devastating impacts for children.
It is necessary and legitimate for this Court to protect children’s best “interests in living in a safe environment”4Pavlov et al. v. Russia (31612/09) 11.10.2022 § 85; Neulinger and Shuruk v. Switzerland [GC] (41615/07) 6.7.2010 § 135 (“The Court notes that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount”); UN Convention on the Rights of the Child (CRC) Article 3; the Committee on the Rights of the Child (CRC Committee), General Comment no. 26 (2023) on children’s rights and the environment with a special focus on climate change (CRC/C/GC/26). to provide democratic accountability. Otherwise, short term political priorities are at risk of pushing the reduction burden onto young and future generations. This will inevitably violate their rights.5Neubauer et al. v. Germany, BvR 2656/18 (Federal Constitutional Court of Germany), 24.03.2021, para. 192.
Although this case raises several procedural questions, ENNHRI respectfully asks the Court to provide substantive guidance to the extent possible, for the benefit of legal clarity.6ECtHR, The Court’s Priority Policy, Category II.
2. ENNHRI’s views on the law
I first turn to ENNHRI’s view on jurisdiction.
2.1. Jurisdiction over territorial and extraterritorial harm in the Convention space caused by emissions under a State’s effective control under Article 1
First, individual States must undoubtedly protect persons on their territory from the harmful effects of domestic emissions under their effective control.
Furthermore, States also exercise effective control over exported combustion emissions from fossil fuels by approving extraction, regardless of where the carbon is ultimately combusted. The accounting rules of the Paris Agreement are aimed at avoiding double-counting and cannot absolve a State from its human rights obligations.7As in Waratah Coal Pty Ltd v. Youth Verdict et al. (Queensland Land Court), 25.11.2022 paras. 674–682. A State must protect inhabitants against the territorial effects of activities it licenses and controls.8Greenpeace Nordic et al. v. Norway, HR-2020-2472-P (Supreme Court of Norway), 22.12.2020 para. 149 ref. para 155, see also paras 167 and 260. See also Royal Dutch Shell, ECLI:NL: RBDHA:2021:5339 (The Hague District Court), 26.05.2021, paras. 4.4.19, 4.4.25 (appealed) and Sacchi et al. v. Germany (dec.), 22.09.2021, (CRC/C/88/D/107/2019) para 9.9.
The question of extra-territorial jurisdiction is, however, a complex one. Although jurisdiction is primarily territorial, emissions inevitably cause harm across borders. This specific feature could justify a different approach to jurisdiction in climate cases. The Inter-American Court and the UN Children’s Committee, relying on the no-harm rule under international law, recently held that States are accountable for activities that cause harm to children in other States.9Inter-American Court of Human Rights, OC-23/17, 15.11.2017 paras. 71-104; Sacchi para 9.9; ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay) 20.4.2010 para. 101 and the Rio Declaration principle 2, referenced in Tătar v. Romania, (67021/01) 27.1.2009 §88 part II.B). If the Court applies this approach, universal jurisdiction could be avoided by limiting jurisdiction to the special transboundary features of climate change, and only within the Convention Space.
In any event, the Court could further limit extra-territorial jurisdiction through a “divided and tailored” approach.10H.F. et al v. France [GC] (24384/19 etc.) 14.9.2022 §§ 186, 189, 215, 216. This could apply to the procedural aspects of Articles 2 and 8 only, requiring States to assess “the effects”11Taşkin et al. v. Turkey (46117/99) 10.11.2004 § 118–119. of emissions under their effective control for children in other Contracting States.12This would be consistent with the best interest of the child under the CRC Article 3, see UNCRC, General Comment no. 26 para. 75 (“States should require the assessment … of the possible direct and indirect impact on the environment and climate, including the transboundary, cumulative, and both production and consumption effects, on the enjoyment of children’s rights.”) (emphasis added)
2.2. Children are existing and potential future victims of climate change under Article 34
I now turn to victim status.
First, a child’s individual complaint does not become an actio popularis simply because numerous other children are also harmed by climate change. That would make it impossible to challenge the most widespread human rights violations.
However, climate harm raises evidentiary questions. Cordella and Pavlov confirm that victim status and applicability of Article 8 don’t require direct “medical evidence” of “damage to the applicants’ health from pollution.13Pavlov §§ 67-71. See also Cordella §§ 104-107. It was sufficient in these cases that general “reliable data” proved that pollution “adversely affected” the “well-being” of people in that area through an “elevated risk to health”.14Pavlov §§ 67-71. See also Cordella §§ 104-107. In Pavlov, this related to half a million people. Victim status in climate cases should be assessed in the same way to avoid a “rigid and inflexible” interpretation.”15Aksu v. Turkey [GC] (4149/04, 41029/04) § 51 with further references. There is no doubt that emissions disproportionately cause mental and physical harm for children in Portugal.16See e.g. Vicedo-Cabrera et al., “The burden of heat-related mortality attributable to recent human-induced climate change,” Nat. Clim. Change 11, no. 6 (2021), Supplementary Table 4; Hickman et al., “Climate anxiety in children and young people and their beliefs about government responses to climate change: a global survey,” Lancet Planet. Health 5, no. 12 (2021) p. e886. And science shows that it will get worse.17See e.g Thiery et al., “Intergenerational inequities in exposure to climate extremes,” Science 374, no. 6564 (2021); IPCC, Climate Change 2022: Impacts, Adaptation and Vulnerability, Chapter 7, p. 1053.
Children may also be potential victims based on “convincing evidence” of future environmental harm.18 Aly Bernard and Others and Greenpeace- Luxembourg v. Luxembourg (dec.) (29197/95) 29.6.1999; Asselbourg et al. v. Luxembourg (dec.) (29121/95) 29/06/1999 with further references. Recognising potential victimhood in climate cases for vulnerable children, with little democratic influence, would allow them to challenge19Mutatis mutandis, Centrum for Rättvisa [GC] (35252/08) §§ 166-169 with further references. climate policies that put them at risk of harm before climate change becomes irreversible.20Mutatis mutandis, Soering v. the United Kingdom [Plenary] (14038/88) §§ 90–91. In simple terms, if you wait, it will be too late.
2.3 Articles 2 and 8 apply and require emission cuts to protect children
I now turn to ENNHRI’s main points today, on applicability and obligations under Articles 2 and 8.
In consistent case law, this Court has required States to protect individuals from foreseeable environmental hazards that constitute a real risk to life and private life.21Öneryildiz v. Turkey [GC] (48939/99) 30.11.2004 § 89; Fadeyeva v. Russia (55723/00) 9.6.2005; Budayeva et al. v. Russia (15339/02 etc.) 20.03.2008 § 132 with further references. This case law does not discriminate regarding the source of the risk. Be it air pollution or asbestos,22Pavlov §§ 76, 77 with further references; Brincat and others v. Malta (60908/11 etc.) 24.7.2014 §§ 80, 81. the Court has reviewed whether States have taken appropriate measures to protect against harm. Greenhouse gas emissions are no different. If anything, they cause more harm. Therefore, apex courts in the Netherlands and Germany used your case law to require States to mitigate that harm by reducing emissions.23Urgenda v. the Netherlands, ECLI:NL:HR:2019:2007 (Supreme Court of the Netherlands), 20.12.2019 para. 8.3.4-5; Neubauer paras. 137, 154-170, interpreting the right to life and physical integrity under the German Constitution art. 2(2) in light of the parallel rights under ECHR and corresponding case-law. ENNHRI asks the Court to do the same.
To secure democratic legitimacy, it is vital that States have a margin of appreciation to balance different interests in the choice of means to reduce emissions. But the Court is well placed to review whether States are actually implementing the necessary emission reductions.24Mutatis mutandis, Pavlov § 90, 91, Fadeyeva §§ 124, 133, Budayeva §§ 134, 135; Öneryildiz § 107: Greenpeace E.V. et al. v. Germany (dec.) (18215/06) 12.05.2009, p. 4. See also Urgenda, para. 8.2.7 and Neubauer paras. 207, 229 and 249.
This is simply because children’s rights cannot be protected by adaptation alone.25See conclusions in Neubauer, para. 157, Urgenda, para 7.5.2. With further warming, hard limits to adaptation will be reached.26IPCC, AR6 Synthesis Report Climate Change 2023, Summary for Policymakers, paras. B.4.2 and B.4.3; World Climate Research Programme et al. 10 New Insights in Climate Science, 10.11.2022, pp. 13–17. Adaptation without mitigation is akin to scooping water out of a sinking boat, before plugging up the hole.
Also, the common argument that emissions are merely a “drop in the ocean” will leave us with a tragedy of the commons. As in Blakaj, the relevant question is whether a State could have done its part to reduce the risk.27Bljakaj et al. v. Croatia (74448/12) 18.9.2014 § 124 with further references. See also Urgenda para. 5.7.8; Neubauer paras. 149, 202-204. For other courts rejecting a de minimis argument, see ENNHRI’s third-party observations of 5.12.2022 in Duarte et al v. Portugal et al. para 6 (n) 26. Every tonne of CO2 adds to global warming and will remain in the atmosphere, aggravating future harm.28IPCC, AR6 Climate Change 2021 The Physical Science Basis: Summary for Policymakers (SPM), 2021, p. 28, para. B.2.2. Conversely, every tonne that is not emitted, reduces climate harm for children.
To determine whether a State’s mitigation measures are appropriate, the Court could apply reliable methods to decide a State’s fair share of emissions reductions, as recommended by the UN Children’s Committee.29CRC Committee, General Comment no. 26 para. 98.b).
However, if the Court refrains from defining fair share, case law gives a firm legal basis to review whether States have “adopted and implemented” an “effective” legal and administrative framework to protect rights.30Nicolae Virgiliu Tănase v. Romania [GC] (41720/12) 25.6.2019 § 135; Fernandes de Oliveira v. Portugal [GC] (78103/14) 31.1.2019 § 105; Kotilainen et al. v. Finland (62439/12) 17.9.2020 § 67; Smiljanić v. Croatia (35983/14) 25.3.2021 § 68 with further references.
This Court has repeatedly scrutinised the quality of domestic laws,31Amann v. Switzerland (27798/95) 16.2.2000 §58; Huvig v. France (11105/84) 24.4.1990 §26; Di Tommaso v. Italy (43395/09) 23.2.2017 §108; Labita v. Italy [GC] (26772/95) 6.4.2000 §§ 176 and 180-184; Söderman v. Sweden [GC] (5786/08) 12.11.2013 § 117. even more so in the context of dangerous activities.32Öneryildiz [GC] § 90. See also e.g. Budayeva § 132; Cordella § 59. It should do the same for climate legislation, because emitting greenhouse gases existentially threatens human lives.
ENNHRI submits that the Court should require three elements to effectively protect rights: science-based targets, implementation, and procedural guarantees.
First, best available science33The Paris Agreement Article 4.1, Article 14, preamble recital 4. The state of scientific knowledge is relevant for the framework, see e.g. Brincat § 112 with further references. must inform what is necessary to protect rights. The Court should review whether States have developed34Based on “appropriate investigation and studies” see, Tătar § 88; Taşkin § 119 with further references. a science-based emission reduction target, for instance through a national carbon budget with reduction pathways, informed by legal principles that constitute common ground, such as the principle of precaution,35Tătar §§ 109, 112, 120; ICJ, Pulp Mills para. 164. The precautionary principle is recognised in, inter alia, UNFCCC Art. 3.3, Rio Declaration Principle 15, and Treaty on the Functioning of the European Union Art. 191(2). See further ENNHRI’s third-party observations of 05.12.2022 in Carême c. France paras. 8-9, 16. highest possible ambition,36The Paris Agreement Article 4.3 (“Each Party’s successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition […]”). (emphasis added). capability,37The Paris Agreement Article 4.3 ( […] reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances”); UNFCCC Article 3.1 (The Parties should protect the climate … in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change […]”). and intergenerational equity.38UNFCCC, Article 3.1 (The Parties should protect the climate system for the benefit of present and future generations of humankind on the basis of equity […]”); Paris Agreement preamble recital 11; Stockholm Declaration, principle 1. See also Neubauer, paras. 146, 183, 192, 205 and ICJ, Whaling in the Antarctic (Australia. v. Japan), 06.02.2014 Rep. 226, Separate Opinion by Judge Trindade, para. 47 (“inter-generational equity marks presence nowadays in a wide range of instruments of international environmental law, and indeed of contemporary public international law”).
At a minimum, States must deliver on their repeated commitments to limit warming to 1.5 degrees.39The Paris Agreement (2015) Article 2.1; Glasgow Climate Pact (UN Doc FCCC/PA/CMA/2021/10/ Add.1) 8.3.2022 paras. 20–22; Sharm el-Sheikh Implementation Plan (UN Doc FCCC/PA/ CMA/2022/10/Add.1) 17.3.2023 paras. 4, 11. This is not only a political consensus, but a red line above which the risk of harm to children increases dramatically. 1.5 requires States to enact deep, rapid, and immediate emission cuts to reach net zero before 2050.40IPCC AR6 Synthesis Report Climate Change 2023, Summary for Policymakers, para. B.6. and B.6.1.
Second, implementation. “Regulations to protect guaranteed rights serve little purpose if they are not duly enforced.”41Moreno Gómez v. Spain (4143/02) 16.11.2004 § 61; Smiljanić § 66. This Court has therefore repeatedly controlled the effective functioning of such frameworks and must continue to do so, as the bridge builder over implementation gaps.
Thirdly, the Court must review whether procedural guarantees are in place. To ensure democratic legitimacy and accountability, children’s best interests and the right to be heard,42CRC Article 3 and 12; CRC Committee, General Comment no. 26, paras. 16-19, 26-28, 75-77. access to information,43Taşkin § 119. as well as mechanisms for independent oversight must be secured.44Mutatis mutandis, the criteria 7 and 8 as set out as requirements to the domestic framework regulating bulk interception in Big Brother Watch and others v. the UK [GC] (58170/13 etc.) § 361.
And finally: the EU has a comprehensive climate regime. But that does not preclude Member States from having more ambitious reduction targets at the national level.45European Commission, Written observations – Case Duarte Agostino and Others v. Portugal and Others 2.12.2022, para. 22; Article 193 TFEU; Decision No 406/2009/EC of the European Parliament and of the Council of 23 April 2009 para. 17; Urgenda paras. 7.3.1–7.3.6 (EU climate regulations “are without prejudice to the individual responsibility of the EU Member States by any other virtue”, and that the EU effort sharing regulation “does not preclude more stringent national objectives”); Neubauer para. 141 (“[t]he Federal Climate Change Act’s background in EU law does not rule out the admissibility of the constitutional complaints). Nor does it absolve this Court from the responsibility to clarify the separate obligations under the Convention.46Advisory Opinion, Urgenda v. State of The Netherlands (2019) at para. 4.105. In other words, the Bosphorus presumption does not apply in this climate context. After Avotiņš v. Latvia [GC] (17502/07) 23.5.2016 § 105, the presumption is only applicable where there is an “absence of any margin of manoeuvre” in the execution of the obligations resulting from its membership of the European Union and it is possible to deploy “full potential of the supervisory mechanism provided for by European Union law”. In the context of EU climate change, individual member States firstly have a wide “margin of manoeuvre” to adopt and implement more ambitious reduction targets than those under EU regulations, see n(45). Secondly, after the Court of Justice dismissed the Carvalho climate case, individuals lack a practical and effective EU “supervisory mechanism” to protect their rights in a climate context, see Carvalho et al. v. Parliament and Council, ECLI:EU:T:2019:324, 8.5.2019.
To conclude: This Court once developed its case law to effectively protect core human rights from environmental harm. Today, the Court is not in substance asked to radically expand its case law, but to apply it to the most serious threat to human rights in this century, if not ever, to protect children. ENNHRI does not contend that courts can solve the climate crisis alone. But this Court must play its part, as all others, must play theirs. Only then can the Convention system keep its place as the world’s leading protector of human rights in the 21st century.