5. The European Convention on Human Rights
The right to life and well-being pursuant to Articles 2 and 8 of the ECHR commits the State to protect citizens from real and imminent risks from environmental and natural disasters. This chapter discusses how this obligation relates to greenhouse gas emissions.
The European Convention on Human Rights (ECHR) does not explicitly contain the right to a clean and quiet environment, or the right to the preservation of the environment as such.1 Hatton v. United Kingdom [GC] (36022/97); Allen et al. v. United Kingdom (5591/07); Greenpeace E.V. et al. v. Germany (18215/06); Kyrtatos v. Greece (41666/98); Ivan Atanasov v. Bulgaria (12853/03); Dubetska et al. v. Ukraine (30499/03). The European Court of Human Rights (ECtHR), which interprets the Convention with binding effect on State Parties, has nevertheless applied several of its provisions to environmental damage that has occurred or risks occurring in the future.2The ECtHR and the Commission have made nearly 300 decisions on environmental risks and harm, discussed here: https://www.coe.int/en/web/portal/concept-human-rights-for-the-planet The ECtHR has in particular interpreted environmental protection into Article 2 (the right to life) and Article 8 (the right to privacy, family life and a home), and occasionally into additional protocol no. 1 Article 1 (P1-1, the right to property). Applicants in climate cases communicated by the ECtHR have also invoked Article 3 (prohibition against inhuman and degrading treatment), Article 6 (access to court), Article 13 (right ot remedy), and Article 14 (prohibition against discrimination).
The question of whether the ECHR requires States to avert the risks that result from dangerous climate change can be examined in two ways. One way is to ask whether the State will be obliged to protect citizens from harm caused by past or inevitable climate change. This is a matter of adaptation to climate change. Based on ECtHR practice, the answer appears to be relatively clear. The State could be positively obliged under Articles 2 and 8 of the ECHR to protect citizens from known risks of natural and environmental disasters and provide emergency relief after such incidents.3 Conc. ECHR Article 2: Budayeva et al. v. Russia (15339/02, 21166/02, 20058/02, 11673/02 and 15343/03); Öneryildiz v. Turkey [GC] (48939/99); Murillo Saldias et al. v. Spain (76973/01) presumably; Kolyadenko et al. v. Russia (17423/05, 20534/05, 20678/05); Özel et al. v. Turkey (14350/05, 15245/05, 16051/05); conc. ECHR Article 8: Guerra, et al. v. Italy [GC] (14967/89); Brincat et al. v. Malta (60908/11, 62110/11, 62129/11); Tãtar v. Romania (67021/01); Dubetska et al. v. Ukraine (30499/02); see also Dzemyuk v. Ukraine (42488/02). It could be a matter of protection under ECHR Protocol No. 1 Article 1 (P1-1): Öneryildiz v.Turkey; Dimitar Yordanov v. Bulgaria (3401/09). As the report focuses on mitigation, we will not discuss such an obligation to make adjustments in more detail here.
Another approach is to ask whether the State is committed to reducing greenhouse gas emissions to avert dangerous or harmful climate change in the future.4Harmful effects of climate change are defined in Section 4 of the Climate Change Act, cf. Article 2(1)(a) of the Paris Agreement as global average temperature warming to more than the limit of tolerance of 1.5 to “well below” 2 degrees Celsius. This is unresolved. The ECtHR has not yet settled appeals about greenhouse gas emissions.The Supreme Court of the Netherlands has held that Articles 2 and 8 of the ECHR, read in conjunction with Article 13, commit the Netherlands to reduce greenhouse gas emissions by at least 25 per cent by the end of 2020 to protect its citizens from the real and imminent danger of dangerous climate change.5For more, see Chapter 9 of the report on climate-related legal cases based on human rights. The German Constitutional Court has held, with reference to Articles 2 and 8 of the ECHR, that the constitutional right to life, physical integrity and property obliges the State to protect against climate change by reducing emissions. The ECtHR has communicated and fast-tracked two cases on greenhouse gas emissions, pertaining inter alia to Articles 2 and 8.
This chapter aims to analyse the issue of whether Articles 2 and 8 of the ECHR, under the circumstances, require the State to avert dangerous climate change. This must be determined independently on the basis of the legal methods adopted by the ECtHR.6HR-2019-1206-A, (paragraph 104). Here, case law from the ECtHR plays an essential role.7Kjølbro (2020), p. 15. Since the ECtHR has not yet decided on the issue, we will first review the ECtHR’s method of resolving interpretation issues where clarifying ECtHR practice is absent (Section 5.2). We will then discuss the substantive protection under Articles 2 and 8 of the ECHR (Sections 5.3-5.7), before considering the issue of standing in relation to greenhouse gas emissions cases based on the ECHR (Section 5.8).
5.2. The ECtHR’s interpretation method
5.2.1. Legal principles
The ECHR is a treaty of international law and is interpreted on the basis of the customary principles expressed in the Vienna Convention on the Law of Treaties, Articles 31-33. This means that the interpretation is based on a normal understanding of the wording of the provision, read in context and in view of its purpose. ECtHR case law is central to the interpretation of the ECHR, since previous court decisions provide an indication of what the Court will decide in similar cases, even if the judgements formally are only binding on the State(s) party to the legal proceedings. In order to interpret the meaning of a particular provision of the ECHR and apply it to a given factual scenario, one must also consider distinctive principles of interpretation that the ECtHR has developed over time, which complement and supplement the basis in international law for the interpretation of treaties. We will discuss five such principles of interpretation here.
5.2.2. Purpose-oriented interpretation
Firstly, the ECtHR’s interpretation method is purpose-oriented, in accordance with the Vienna Convention. The Court has repeatedly emphasised that the purpose of the Convention is to safeguard rights that are not theoretical and illusory, but practical and effective.8 Demir and Baykara v. Turkey [GC] (34503/97), Section 53; Klass et al. v. Germany (5029/71), Section 34. This applies to both substantive and procedural provisions. The primary purpose of the Convention’s enforcement system is to provide individual restitution. Nevertheless, the ECHR also ensures collective implementation of its provisions. A key purpose of the Convention is to decide on general issues in the interests of society in order to raise the level of the general standards of protection.9Kjølbro (2020), p. 15. This follows from the Convention’s preamble, sixth paragraph, in which the Convention States commit to the “collective enforcement” of human rights, and which has been consistently referred to by the ECtHR since Ireland v. United Kingdom in 1978.10 Ireland v. United Kingdom (5310/71), 18/01/1978, Section 239. The ECtHR has also emphasised that the interpretation of the ECHR must include consideration of “the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms”.11 Loizidou v. Turkey [GC] (15318/89), Section 70. This collective protection objective is also evident from references in the preamble to peace and the common heritage of State Parties based on the rule of law and democracy.
The collective protection purpose of the Convention cannot be understood as being limited to present and short-term interests but also as providing protection for future generations. This is supported by the preamble of the Statute of the Council of Europe, which is included as a relevant instrument for the contextual interpretation of the ECHR, see Article 31 (3) (c) of the Vienna Convention. The second paragraph of the preamble of the Statute states that the overarching purpose of the establishment of the Council of Europe and the convention system, which includes the ECHR, was to safeguard peace, justice and “the preservation of human society and civilisation”.12Statute of the Council of Europe, 1949. These aspects of the ECHR’s purpose and scope will have an impact on the interpretation of the various convention provisions.
5.2.3. Dynamic interpretation
Secondly, the ECtHR’s interpretation method is dynamic. The Convention constitutes a “living instrument” that is to be interpreted in light of “present-day conditions”.13 Demir and Baykara v. Turkey, Section 68. This means that the ECtHR’s present case law is a necessary, but not completely sufficient, source for predicting how the court will assess a particular question.14Kjølbro (2020), p. 25. This has two implications. Firstly, this means that even though the ECtHR has to date only considered appeal cases concerning local environmental pollution and not appeals concerning greenhouse gas emissions, it cannot be ruled out that the ECtHR will at some point consider alleged violations of Articles 2 and 8 of the ECHR as a result of greenhouse gas emissions. Secondly, this means that the principles developed by the court in relation to appeals concerning local environmental damage will not necessarily govern new appeals about greenhouse gas emissions, because it must be taken into account that social developments in the meantime may have necessitated further development of the interpretation.15Kjølbro (2020), p. 25, a corresponding principle appears to be assumed by the Supreme Court of Norway in HR-2020-972-U (paragraph 26) in another area of the law. The ECtHR’s approach to various rights issues will, therefore, depend on the social challenges that exist at any given time.
5.2.4. The principle of subsidiarity
Thirdly, the ECtHR interprets the Convention in light of the principle of subsidiarity.16 Budayeva et al. v. Russia. The principle of subsidiarity implies that it is primarily the Convention States, including national courts, that shall ensure observance of the rights and positive obligations of the Convention, and that the ECtHR’s review function is subsidiary, see Article 19 of the ECHR. The principle of subsidiarity indicates that national courts are unlikely to wait for an authoritative interpretation by the ECtHR, for example, in climate matters. The principle of subsidiarity appears rather to assume that the national courts shoulder, as part of the national authorities, the primary responsibility for ensuring the observance of rights and obligations under the Convention, so that the ECtHR’s review can be secondary. This has been given more emphasis in recent times. Pursuant to with Protocol no. 15, Article 1, it shall be included in the ECtHR’s preamble that the Convention States “have the primary responsiveness to secure the rights and freedoms defined in this Conventions and the Protocols thereto.”17Protocol no. 15 will enter into force three months after being ratified by all Member States of the Council of Europe, cf. Article 7 of the Protocol. At present, the protocol has been ratified by 45 out of 47 states. The status of the ratifications is available here: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/213/signatures?p_auth=5tABARHI
5.2.5. Principle of margin of appreciation
Fourthly, the ECtHR interprets the Convention in light of the principle of the margin of appreciation. The margin of appreciation is related to the principle of subsidiarity and implies that the ECtHR may allow the Convention States a certain discretionary latitude when assessing whether it is necessary to intervene in certain rights, or what measures are necessary to ensure them.18Kjølbro (2020), p. 25. The rationale is that the national authorities will most often be better placed than the ECtHR to make these assessments, because they have greater insight into special circumstances that may apply in each individual country.19HR-2013-2200-P (paragraph 257). The extent of the margin of appreciation will, inter alia, depend on whether there is a European consensus, as well as the nature of the right and the activities that are appealed.20Kjølbro (2020), p. 26. In environmental cases, the Court has afforded a “certain” or a “wide” margin of appreciation.21See for example Lopez Ostra v. Spain, Cordella v. Italy, Budayeva v. Russia.
5.2.6. The significance of international and national law
The fifth and final interpretation principle that we will emphasise here concerns the significance of other international and national laws.
The ECtHR interprets the Convention in accordance with the rules and principles of international law, see Article 31(3)(c) of the Vienna Convention, which states that treaties should be interpreted in light of relevant “rules of international law appliable in the relations between the parties.” The ECtHR has emphasised that the ECHR cannot be interpreted and applied “in a vacuum”, but must take into account “any relevant rules of international law” and be interpreted “as far as possible in harmony with other principles of international law of which it forms part”.22 Bankovic et al. v. Belgium et al. (52207/99) Section 57. There is no prerequisite that the treaties are binding or the rules have been ratified by the Convention State, as long as “the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of Member States of the Council of Europe and show, in a precise area, that there is a common ground in modern societies”.23 Demir and Baykara v. Turkey, Section 86. The notion of “common ground” includes “scientific and societal developments”.24Christine Goodwin v. the United Kingdom (28957/95), § 92. The ECtHR assesses whether there is a “consensus emerging from specialised international instruments and from the practice of Contracting States”.25 Demir and Baykara v. Turkey Section 85 (our emphasis by italics). If such a consensus is under development, it may constitute a “relevant consideration” for the Court when interpreting the Convention.26 Demir and Baykara v. Turkey Section 85 (our emphasis by italics).
The Paris Agreement has been ratified by 46 out of the Council of Europe’s 47 Member States, as well as by the EU.27Turkey signed the Paris Agreement on 22 April 2016 but has not ratified the agreement. This is an internationally binding agreement. The emission obligations are nationally determined, but they must be progressive and reflect the highest level of ambition, see Article 4.3. The Paris Agreement’s goal of keeping warming below 1.5 degrees Celsius, and “well below” 2 degrees Celsius, and the IPCC reports the agreement is based on, may be considered as constituting “common ground” from specialised international law instruments and State practices, which may be of significance to the interpretation of the ECHR.28Wewerinke-Singh, State responsibility, climate change and human rights under international law (2019). The environmental law precautionary principle incorporated in the Rio Declaration and the UNFCCC, and the no-harm principle as customary international law, may also be of importance to the interpretation.29See Tătar v. Romania (67021/01), Section 120, where the ECtHR refers to the precautionary principle in the Rio Declaration as an important principle. For more, see Demir and Baykara v. Turkey, Section 86. Furthermore, the UN Human Rights Committee’s general comments and decisions in individual appeal cases concerning the ICCPR and greenhouse gas emissions may contribute to the interpretation.30Cf. Opuz v. Turkey (33401/02), Section 187. The decisions of the UN Human Rights Committee are discussed in greater detail in NIM’s report on climate and human rights (2020), Chapter 6.
Finally, the ECtHR will be able to look to the practice of the upper courts of the Convention States as a source of law for the interpretation.31 S. V. and A v. Denmark [GC] (35553/12, 36678/12 and 36711/12), Sections 122 and 125. There are European Supreme Court decisions on climate and human rights from for instance France, Switzerland, Norway, the United Kingdom, and the Netherlands.32Décision n 2019-823 QPC: “Il en découle que la protection de l’environnement, patrimoine commun des êtres humains, constitue un objectif de valeur constitutionnelle”, available in an English translation here: https://www.conseil-constitutionnel.fr/en/decision/2020/2019823QPC.htm. The Supreme Court of the Netherlands concluded last year that Articles 2 and 8 of the ECHR bound the Netherlands to reduce its greenhouse gas emissions by a minimum of 25 per cent compared with the 1990 level by the end of 2020. The ECtHR’s former President Sicilianos has referred to the Urgenda judgement as historic. Even though such speeches carry no significance as a source of law, Sicilianos observations are worth noting:
“By relying directly on the Convention, the Dutch judges highlighted the fact that the European Convention on Human Rights really has become our shared language and that this instrument can provide genuine responses to the problems of our time.”33Siciliano’s speech at the opening of the ECtHR for the legal year 2020 on 21 January 2020, available here: https://www.echr.coe.int/Documents/Speech_20200131_Sicilianos_JY_ENG.pdf See also the published speech of 27 February 2020, available here: https://www.echr.coe.int/Documents/Speech_20200227_Sicilianos_Environment_FRA.pdf
The ECtHR’s method is based on the wording of the Convention, but because the ECHR consists largely of standards with little detail, the wording must be interpreted. The Court’s interpretation is distinctively purpose-oriented, to ensure effective rights, and dynamic, in order to respond to contemporary challenges. In establishing the obligations, the ECtHR takes international law into account, and may, under the circumstances, give weight to national supreme court practice. Since the judicial review of national courts is primary, while the ECtHR’s review is subsidiary, the principles of subsidiarity and the margin of appreciation do not mean the same to the national courts as the ECtHR. In the absence of clarifying case law from the ECtHR in the area of climate, national authorities and courts will have to make independent interpretations of the Convention, based on its purpose and the ECtHR’s existing case law.
Pursuant to Article 1 of the ECHR, a State’s obligations under the Convention apply to everyone within that State’s jurisdiction. An unresolved question is whether the State can be held to have jurisdiction for the purposes of Article 1, not only for its territorial GHG emissions, but also for exported GHG emissions under its “effective control”.
The jurisdictional concept under Article 1 is primarily territorial, but the ECtHR has nevertheless allowed recognised that “acts of the States Parties performed, or producing effects, outside their territories” may involve the exercise of jurisdiction.34M.N. and Others v. Belgium, no. 3599/18, § 101. The Court has also noted that State responsibility may be engaged if acts have “sufficiently proximate repercussions on rights guaranteed by the Convention, even if those repercussions occur outside its jurisdiction”.35Ilascu et al. v. Moldova and Russia, no. 48787/99, § 317. The exceptions established to date pertain to effective control over either territory or persons. In principle, however, extra-territorial jurisdiction may also arise from transboundary harm caused by emissions, being acts of the States Parties “producing effects” abroad.
Emerging trends in international and national law may also point in that direction. The Inter-American Court of Human Rights (IACtHR) has held that a State will have extra-territorial jurisdiction if it has effective control over the harmful activity in question and if there is a “causal link between the act that originated in its territory and the infringement of the human rights of persons outside its territory”.36IACtHR,Advisory Opinion on the Environment and Human Rights, OC-23/17, 2017, paras. 101-102. The UN Committee on Economic Social and Cultural Rights (CESCR) and the IACtHR have noted that activities causing transboundary environmental harm undertaken within the jurisdiction of a State Party should not deprive another country of its ability to realise rights for persons in its jurisdiction.37CESCR, General Comment No. 15 on the Right to Water, UN Doc. E/C.12/2002/11, 2002, para. 31; IACtHR, Advisory Opinion on the Environment and Human Rights, paras. 94, 101-102. The UN Human Rights Committee has generally noted that the right to life under Article 2 of the ICCPR will apply extra-territorially to any person whose right to life is “affected” by the State’s activities in a “direct and reasonably foreseeable manner”.38Human Rights Committee, General Comment No. 36 on the Right to Life, UN Doc. CCPR/C/GC/36, 2018. In a 2020 judgement concerning surveillance of non-German individuals abroad, the German Constitutional Court held that the State’s extraterritorial jurisdiction is engaged where the State has the capacity to interfere with the rights of any person abroad.39BVerfG, Judgement of the First Senate of 19 May 2020, BvR 2835/17 (German Constitutional Court). Exported GHG emissions were deemed relevant in a 2020 judgement by the Norwegian Supreme Court and in a 2019 Australian judgement by the New South Wales Land and Environment Court.40HR-2020-2472-P, para. 149; Gloucester Resources Limited v Minister for Planning  NSWLEC 7 (NSW Land & Environment Court).
The fact that climate change is caused by multiple States and actors, does not necessarily negate jurisdiction. Under ECtHR case law, State responsibility may be engaged for human rights violations that are attributable to more than one State and possible factors that are outside the jurisdiction under Article 1.41William Schabas, The European Conventioin on Human Rights – A Commentary, Oxford University Press, 2015, s. 93; Andrejeva v. Lativa (55707/00, § 56. This is consistent with international law, see Draft Articles on State Responsibility for Internationally Wrongful Acts, article 47.42Ilascu et al. v. Moldova and Russia, no. 48787/99, §§ 320 – 322. However, since GHG emissions affect human rights across the globe, and the ECHR is a regional convention, the extra-territorial applicability might reasonably be limited to the effects within the Convention’s legal space (ordre public).43Louizidou, § 70; Cyprus v. Turkey, no. 25781/94, § 78; see Bankovic and Others v. Belgium and Others, no. 52207/99 [GC], § 80. Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 232; Castaño v. Belgium, no. 8351/17, § 81.
5.4. Articles 2 and 8 of the ECHR in general
5.4.1. Point of departure
As mentioned above, the ECHR does not explicitly contain the right to a “clean and quiet environment”, but environmental protection is nevertheless interpreted into Articles 2 and 8 of the ECHR. In the following, we will explain the legal principles that can be derived from the ECtHR’s practice, and discuss their application to appeals concerning greenhouse gas emissions. The analysis is structured so that we will first discuss whether the provisions apply (5.5–5.7), and then discuss the substantial and procedural obligations that may arise (5.8).
5.4.2. Relationship between Articles 2 and 8 of the ECHR
Article 2 of the ECHR protects the right to life, while Article 8 of the ECHR protects, inter alia, the right to respect for one’s home and private life, including physical integrity, health and well-being. Even though the provisions differ, the ECtHR has considered the rights to be overlapping in cases on environmental grounds concerning “dangerous activities”.44 Budayeva et al. v. Russia, Section 133; Öneryıldız v. Turkey [GC] (48939/99), Sections 90 and 160. In Cordella et al. v. Italy, for example, the ECtHR considered the appellants’ submissions regarding violations of Articles 2 and 8 of the ECHR, as well as Article 13, solely under Article 8 of the ECHR.45 Cordella et al. v. Italy, Section 94. The fact that the provisions overlap implies, according to the ECtHR, that principles of law developed in case law on the environment and planning matters concerning Article 8 can also be applied to cases concerning Article 2, and vice versa.46 Budayeva et al. v. Russia, Section 133. The ECtHR typically assesses appeals under Article 2 of the ECHR if the actions in question entail a relevant and obvious risk to life, while appeals are typically assessed under Article 8 if the actions do not entail such risks, but rather risks to life and physical integrity in the long term.47 Vilnes et al. v. Norway (52806/09 and 22703/10), Section 234; Kjølbro (2020), p. 238 Article 3 of the ECHR might also be applicable where environmental hazards attains a “minimum level of severity [that] involves actual bodily injury or intense physical or mental suffering”.48See in general, Ireland v. the United Kingdom, § 167. On environmental hazards in particular, see Lopez Ostra v. Spain.
For the sake of this overview, we will discuss the interpretation principles relating to Article 2 and 8separately, but the case law concerning the two provisions may be relevant in both respects.
5.4.3. Precautionary assessment of risk
It may be argued that human rights obligations do not apply well to greenhouse gas emissions and the general consequences of climate change, since it is difficult to establish the actual causal relationship between emissions, climate change and harmful events.49Dupuy and Viñuales, International Environmental Law, 2nd edition (2018) pp. 396–397. This problem of attribution pertains to responsibility for events that have already occurred. The issue of prevention of risk is another. The issue here is whether Articles 2 and 8 of the ECHR positively bind State Parties to prevent the risk of dangerous climate change as a result of greenhouse gas emissions. The difference is illustrated by Tãtar v. Romania. Here, the ECtHR found that it had not been substantiated that the pollution was the cause of the demonstrated deterioration in the appellant’s asthma, but that the pollution nevertheless represented a real risk of injury to the health of the general population of the area.50 Tãtar v. Romania, Sections 106–107. When the ECtHR accepts greater uncertainty for the future risk assessment, this is, among other things, anchored to the fundamental precautionary principle of environmental law, see the Rio Declaration.51 Tãtar v. Romania, Section 120.
5.5. Does Article 2 of the ECHR apply?
Article 2 of the ECHR on the right to life is the most fundamental right in the Convention.52O’Boyle et al. 2018 (205) pp. 575–595. Kjølbro (2020), p. 237 and the ECtHR’s Guide on Section 2 of the Convention – Right to Life (updated 30 April 2020), p. 6 categorises Article 2 as one of the most fundamental rights. See also Giuliani and Gaggio v. Italy [GC] (23458/02), Section 174). It cannot be derogated from.53Article 15 of the ECHR. The ban on derogation does not apply to a state’s lawful acts of war. The provision binds the State not only to refrain from negative interventions in the right to life, but also to take “appropriate steps to safeguard the lives of those within its jurisdiction”.54 Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, Section 130. The positive obligation or the duty to safeguard applies “in the context of any activity, whether public or not, in which the right to life may be at stake”.55 Öneryildiz v. Turkey, Section 71. The ECtHR has stated that the obligation must be interpreted and applied “so as to make its safeguards practical and effective”.56 McCann et al. v. United Kingdom [GC] (18985/91), Section 146; Öneryildiz v. Turkey, Section 69.
Even though Article 2 of the ECHR does not regulate environmental hazards based on its wording, the ECtHR has made the provision applicable in environmental matters to protect against real and imminent danger to life in the event of pollution, industrial risk, environmentally hazardous activities and natural disasters.57 Guerra et al. v. Italy [GC] (116/1996/735/932), Sections 60–62; Öneryildiz v. Turkey, Sections 69–74; Budayeva et al. v. Russia, Section 146; M. Ôzel et al. v. Turkey (14350/05), Sections 170–172; Kolyadenko et al. v. Russia (17423/05, 20534/05, 20678/05, 23263/05 and 35673/05); Brincat et al. v. Malta (60908/11, 62110/11, 62129/11, 62312/11 and 62338/11). The provision is not limited to situations where lives have been lost, but also applies where there is clearly a risk of loss of life.58 Kolyadenko et al. v. Russia, Section 151, Budayeva et al. v. Russia, Section 146. The ECtHR’s practice with regard to Article 2 of the ECHR has primarily been brought about by individual appeals filed after lives have been lost or put at risk. However, this does not mean that the duty to safeguard only applies when the risk has already materialised. The duty to safeguard is preventative and general by nature, so it also arises in situations where the authorities should be aware of a sufficiently serious and close risk of loss of life.
5.5.2. Protection against the general risk to society
Since the risks associated with climate change may have a general impact, an initial issue is whether Article 2 of the ECHR can provide protection against this type of general risk to society, or whether the provision only provides protection to individuals. This will depend on the criteria developed in practice to determine whether a situation gives rise to a duty to safeguard. The ECtHR applies a modified version of the so-called “Osman Test” in environmental cases.59 Öneryildiz v. Turkey; Budayeva et al. v. Russia; Kolyadenko et al. v. Russia. This test was originally developed in cases of serious violence by third parties, and sets out a positive obligation to prevent threats against the right to life in cases where:
“the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals […] and failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”.60 Osman v. United Kingdom (87/1997/871/1083), Section 116
In principle, the “Osman test” requires there to be a risk against an identified individual or individuals, but the ECtHR has in subsequent cases recognised that State Parties have an obligation “to afford general protection to society”, for example, in cases of potentially violent acts by the mentally ill, suspected terrorist attacks or landmines.61See resp. Bljakaj et al. v. Croatia (74448/12) Section 77; Tagayeva et al. v. Russia (26562/07) Section 482 and Ercan Bozkurt v. Turkey (20620/10) Section 54. This is also a common view in international literature. O’Boyle et al. writes, for example, that the ‘Osman obligation’ “has been extended beyond the protection of ‘identified individuals’ at risk to that of the public at large in a life-threatening situation”.62O’Boyle et al. (2018) p. 213. In the ECtHR’s own commentary guide for Article 2 of the ECHR, it is further stated that the Court has stipulated “an obligation to afford general protection to society” in various contexts.63Case law guide for Article 2, Section 21, refers, inter alia, to Mastromatteo v. Italy (37703/97), Section 69 and Gorovenky and Bugara v. Ukraine (36146/05 and 42418/05), Section 32. The environment is one such context.
With regard to environmental threats that expose an entire region to risk, Articles 2 and 8 of the ECHR protect the residents of the region. In Cordella et al. v. Italy and Tãtar v. Romania, Article 8 of the ECHR was violated because the authorities allowed pollution that exposed not only the appellants, but the entire population of the affected areas in general to a health hazard.64 Cordella et al. v. Italy, Section 172: “plus géneralement, celle de l’ensemble de la population résidant dans les zones à risque”. Tătar v. Romania, Section 122: “la Cour estime que la population de la ville de Baia Mare, y inclus les requérants, a dû vivre dans un état d’angoisse et d’incertitude accentuées par la passivité des autorités nationales […]”; Section 124: “les autorités nationales ont manqué à leur devoir d’information de la population de la ville de Baia Mare, et plus particulièrement des requérants”. The scope of the duty to safeguard is limited based on who is exposed to the risk, whether it is individuals or all the residents of a region. In the event of very local pollution, only neighbours will be protected, whereas in the case of pollution or environmental hazards with larger impact areas, the residents of the exposed regions may be protected. The ECtHR’s decision will materially only apply to the groups of individuals who have exercised their right to appeal, but the Court’s reasoning in deciding whether to apply the duty to safeguard will include consideration of the general population in the relevant area.65 Cordella et al. v. Italy, Section 172; Tãtar v. Romania, Section 122. To the extent that general principles can be derived from the Court’s reasoning in different cases, it is thus probable that the delimitation of the protected population depends on the geographical extent of the pollution or environmental hazard. ECtHR jurisprudence suggests that the protection may encompass larger populations in the event of hazardous pollution that is not limited to a local impact area, but which will have a greater impact in general. This may apply to cases concerning greenhouse gas emissions.66As in Urgenda v. Netherlands.
The ECtHR’s expansion of the duty to safeguard to encompass general social protection is consistent with a purpose-oriented interpretation of the Convention. For even though the primary purpose of the convention system is to provide individual restitution, the purpose is also to decide on general questions in the interests of society in order to raise general protection standards.67Kjølbro (2020), p. 15. The ECHR’s preamble, sixth paragraph, binds States Parties to the “collective enforcement” of human rights, and the ECtHR has emphasised that the Convention also has a distinctive collective protection objective.68 Loizidou v. Turkey, Section 70. See also section 5.2.2.
In light of the present case law and a purpose-oriented interpretation of the Convention, it would be counter-intuitive to assume that Articles 2 and 8 of the ECHR do not apply to human rights violations resulting from dangerous climate change. The impact of these human rights violations will be so extensive that the risks can be considered collective, while at the same time, each of the countless violations on a smaller scale will involve risks to the protection of rights at an individual level.69For more of the same, see Section 3.15. The principle of effectiveness may point in the same direction. An interpretation which ultimately concludes that the right to life does not encompass the right to an atmosphere that can sustain life, may not be consistent with the principle that the rights set out in the ECHR shall be interpreted in a manner that renders them practical and effective.
5.5.3. What does the requirement for a “real and immediate” risk entail?
Another question is whether the risk of dangerous climate change is sufficiently “real and immediate” to trigger the duty to safeguard. This is based on an assessment of how serious and how imminent the risk is, and the two factors are interrelated. A very serious risk may increase the imminency of the risk, and vice versa.70See, for example, Nicolae Virgiliu Tănase v. Romania (41720/13), Section 144. A corresponding point of view follows from the general law of damages, whereby the duty of care is assessed based on such factors as an overall assessment of the probability of the realisation of risk compared with the potential extent of damage if the risk were to be realised. As Lødrup writes in Lærebok i erstatningsrett (5th ed. 2005): “The safety devices in a nuclear power plant must of course be more extensive than in a pin factory” (page 108). This will also affect the scope and content of the measures that the authorities are required to adopt to address the risk.71 Budayeva, paragraph 135.
As for the requirement that the risk be “real”, this phrase has been understood in other contexts as a delimitation against “mere possibilities”, but the ECtHR has otherwise made modest demands on the likelihood that the risk will materialise.72Cf. T.K. and S.R. v. Russia (28492/15) Section 9. The Supreme Court of the Netherlands has interpreted the phrase to mean a risk that is “genuine”.73See the Supreme Court of the Netherlands in Urgenda v. Netherlands, Section 5.2.2. NIM assumes that the “real risk” requirement is satisfied by the international scientific consensus, as outlined in the IPCC reports, on the risks associated with dangerous climate change as a result of warming in excess of 1.5 to 2 degrees.74 Demir and Baykara v. Turkey.
The next question is whether the risk of dangerous climate change can also be characterised as “immediate”. ECtHR case law shows that the notion “immediate” encompasses risks that may also materialise in the longer term:
In Öneryildiz v. Turkey, the risk of a gas explosion had been known to the authorities for several years, while in Budayeva et al. v. Russia, the authorities had for a period prior to the landslide been aware of the danger of landslides and the possibility that such landslides could occur at some point in time.75See Sections 98–101 and 147–158, respectively. In Kolyadenko v. Russia, the authorities had been aware of the risk of flooding for years, without taking the “necessary steps” to protect “those individuals who, on the date of the entry into force of the Convention in respect of Russia, were living in the area downstream of the Pionerskoye reservoir”.76 Kolyadenko et al. v. Russia, Section 171. As a result, the ECtHR linked the duty to safeguard to persons who lived downstream at the time of ratification in 1998, even though the risk did not materialise until 2001, and then not necessarily to the same individuals. In Brincat et al. v. Malta, the authorities should have been aware from the early 1970s of the risk of asbestos exposure at a shipyard, to protect employees who subsequently died, developed life-threatening illnesses or serious health problems.77 Brincat et al. v. Malta, Sections 103–117. And in Tãtar, the risk of the pollution hazard had been known to the authorities since an impact assessment in 1993. The factory in question was nevertheless commissioned in 1999, a factory accident occurred in the following year, and the activities continued. The ECtHR emphasised that the positive obligation to protect against serious and substantial risk to health and well-being was equally valid before the establishment of the factory as after the accident, and was even more valid in the years thereafter, while the factory continued to operate.78 Tãtar v. Romania, Section 107.
Supreme Courts in Europe have approached this question under ECHR article 2 in different ways. The Administrative Supreme Court of Switzerland considered that heat waves do not pose a real and immediate risk today, because global warming will not exceed 1.5 or 2 degrees before 2040. As pointed out by Dutch courts, however, the risk of missing the 1.5 or 2-degree target is not hypothetical, however, it already latently exists.79Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others, para. 5.3. Based on ECtHR case law, the Supreme Court of the Netherlands has interpreted “immediate” as not referring to a short period of time, but that the risk is “directly threatening the persons involved”.80Supreme Court of the Netherlands, Urgenda v. Netherlands, Section 5.2.2. See Öneryildiz v. Turkey; Budayeva et al. v. Russia and Kolyadenko et al. v. Russia. The Court concluded that since “the lives and welfare of Dutch residents could be seriously jeopardised” within a few decades, climate change clearly poses a real and immediate risk in comparison to long-term hypothetical risks considered by the ECtHR.81Urgenda v. Netherlands, paras. 5.2.2. and 5.6.2. The German Constitutional Court has also held, with reference to ECtHR case-law under Articles 2 and 8, that the right to life and physical integrity under the German Constitution obliges the State to protect against climate change by limiting the antropoghenic concentration of greenhouse gases in the atmosphere. The Court held that an objective obligation to protect the right to life against climate change also arise in respect to future generations. Similarly, the Administrative Supreme Court of France has recognised that even if the severe consequences of climate change will not manifest before 2030 or 2040, there is an urgent need to act without delay due to their inevitability in the absence of effective preventative measures today.82Grande Synthe v. France, para. 3. The Supreme Court of Norway has held that climate change threaten life in Norway under ECHR Article 2. However, there was no “real and immediate” risk associated with the specific exploration licenses for oil and gas under review; they had not lead to discovery of exploitable oil and gas and were unlikely to lead to GHG emissions in the near future.83HR-2020-2472-P, para. 167.
It can also be noted that Supreme Courts in various countries have described the risk of dangerous climate change as real and imminent. The Supreme Court of the United States has characterised the risk of harm from unregulated GHG emissions as “actual” and “imminent”, with a “real” risk of “catastrophic harm”.84Massachusetts v. EPA, 549 US 497 (2007) p. 23 [Section IV]. The Supreme Court of Colombia has called the risk of climate change “grave y inminente”, posing a “growing threat to the possibility of existence of human beings”.85Future Generations v. Ministry of the Environment and Others, STC4360-2018 (Supreme Court of Colombia). The Irish Supreme Court has noted that the consequences of failing to address climate change are “very severe with potential significant risks both to life and health”.86Friends of the Irish Environment, para. 3.6. The Supreme Court of Canada has called climate change an “existential threat to human life in Canada and around the world”, adding that climate change “is causing significant […] human harm nationally and internationally”.87Re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, Chief Justice Wagner (Supreme Court of Canada)
Based on the above, NIM is of the view that the notion “real and immediate” encompasses the latent and long-term effects of dangerous climate change. It can be noted that since the immediacy requirement is set out in connection with the State’s preventive duty to “avoid” life-threatening risks from materialising, this logically refers to a point in time when the danger – emissions exceeding the 1.5-degree carbon budget – can still be prevented. When it comes to dangerous climate change, the positive duty to safeguard must be triggered prior to the emissions occurring, and not at a later point in time when the risk begins materialising.
This is because the temperature response to greenhouse gas emissions has an inherent inertia. Because even though all the greenhouse gas emissions affect the climate from the moment they are released, some greenhouse gases – especially CO2 – will also have an effect in the longer term.88See Chapter 2 of the report, written by CICERO on commission from NIM. The latest research shows that if the amount of CO2 in the atmosphere abruptly doubled, it would result in the long term in additional warming of approximately 3 degrees Celsius. Around half of this warming would have occurred during the first decade, much of the remaining warming over the next hundred years, and then a small remnant on a millennial scale.89Sherwood et al., 2020, featured in Chapter 2 of the report, written by CICERO on commission from NIM. In other words, climate change is locked in from when the emissions occur. This means that the assessment of whether the risk of dangerous climate change is “imminent” must be linked to a point in time before the emissions, when the change is still preventable, and not close to the moment the change takes effect, when climate change as a result of emissions is unavoidable and irreversible.
5.5.4. The authorities’ knowledge of the risks
In accordance with the Osman Test, it is also a requirement that the authorities “knew or ought to have known at the time” about the existence of the risk. The authorities’ due care is assessed specifically, and the requirement is relative to the magnitude and proximity of the risk.90 Öneryildiz par. 101. If the authorities can be blamed for not knowing more about the risk or for not having investigated and assessed the risk, then this may entail liability.91 Tatar v. Romania, Section 97. The risk of dangerous climate change as a result of greenhouse gas emissions is well established, and has been so for many years. It can therefore be presupposed that state authorities have sufficient knowledge of the risks.
The risk of dangerous climate change due to greenhouse gas emissions is real and cannot be characterised as anything less than “immediate”. Greenhouse gas emissions affect the climate immediately.92See Chapter 2 of the report, written by CICERO on commission from NIM. In addition, some greenhouse gases, such as CO2,, will have an effect for a long time. This inertia of the temperature response is latent and irrevocable.93The assessment will have to be based on available, scalable technology. Hence, Article 2 applies.
According to ECtHR case law, however, there is no need to make a final decision on whether Article 2 of the ECHR applies. This is because, in cases where the risk is far into the future, the ECtHR may in any case choose to allow the assessment pursuant to Article 2 of the ECHR to be consumed by Article 8 of the ECHR.94 Vilnes et al., Cordella et al. In the following, we will discuss the conditions for Article 8 of the ECHR applying to greenhouse gas emissions.
5.6. Does Article 8 of the ECHR apply?
5.6.1. Point of departure
Article 8 of the ECHR protects the right to respect for private and family life, home and correspondence. The wording of this provision does not grant the right to the environment, but the ECtHR has interpreted this right as encompassing environmental pollution that “may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely”.95 Taşkın et al. v. Turkey (46117/99), Section 113. In other contexts, the ECtHR has formulated it as a requirement that the environmental degradation must “directly and seriously affect” private and family life, or affect “adversely, to a sufficient extent”, see Hatton v. United Kingdom, Section 96. The impact must therefore exceed a certain threshold, but it is not a requirement that the pollution constitutes a serious health hazard.96 López Ostra v. Spain, Section 51; Taşkın et al. v. Turkey, Section 113. Article 8 of the ECHR will also apply where a “sufficiently close link” has been established between the dangerous future effects of an activity that individuals may be exposed to and private and family life.97 Taşkın et al. v. Turkey, Section 113. It is this protection against potential risk that is discussed in greater detail here.
5.6.2. Negative and positive obligations in general
As with the right to life in Article 2 of the ECHR, Article 8 of the ECHR may be violated as a result of intervention by the State itself (the state’s negative obligation) or by the State not adequately safeguarding the right from intervention from third parties (the state’s positive obligation). The positive obligation is derived from Article 8(1) of the ECHR, while the negative duty depends on an overall assessment of whether the intervention is lawful pursuant to Article 8 (2) of the ECHR. According to the ECtHR, the State must take “reasonable and appropriate measures”.98See, for example, Lopez Ostra v. Spain and Hatton v. United Kingdom. The distinction between negative and positive obligations may be fluid, and the relevant principles are “broadly similar”.99 Jugheli et al. v. Georgia, Section 73. The ECtHR has stated that:
“In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention.”100 Jugheli et al. v. Georgia, Section 73.
5.6.3. Does Article 8 of the ECHR cover the latent and future risk of climate change?
As with Article 2 of the ECHR, a key question is whether Article 8 of the ECHR covers the latent and future risk of dangerous climate change. The question is unresolved, but current case law nevertheless provides some clues.
An older admissibility decision, Asselbourg et al. v. Luxembourg, does indeed state that it will only be in “wholly exceptional circumstances” that the risk of future violations may constitute a prima facie Convention violation.101 Asselbourg v. Luxembourg (29121/95), 29/06/1999. The Court did not consider Article 8 of the ECHR, but Article 34. It held that “the mere mention of the pollution risks” was not enough, and that the appellants had to prove a detailed probability of risk of injury. Subsequent development of the law suggests that protection under Article 8 of the ECHR against potential and hypothetical risk goes somewhat further.102See Hardy and Maile v. United Kingdom, Section 185, see also Section 189. Asselbourg is only mentioned a few times in subsequent cases.
In Taşkın et al. v. Turkey from 2004, Turkey was held responsible for the risk of possible health damage caused by pollution from a gold mine, where the risk would not materialise among the residents of the area until after 20-50 years.103 Taşkın et al. v. Turkey, Section 107, compared to Section 113. Turkey argued that the risk was too “hypothetical” to be deemed “serious and imminent”, and therefore outside the scope of application of Article 8 of the ECHR. The ECtHR dismissed the argument, and concluded that Article 8 of the ECHR had been violated. The most important element according to the Court was that a “sufficiently close link” had been established between the risk of hazardous health effects and private and family life. If such a risk was not encompassed, the positive obligation to safeguard the rights of appellants under Article 8 of the ECHR would “be set at naught”.104 Taşkın et al. v. Turkey, Section 113. Since the Supreme Court of Turkey had already rendered an adverse decision on the authorities’ substantial duty to safeguard the right to life and a healthy environment, the ECtHR only made an assessment of the procedural side of the duty to safeguard (Section 117). The Court found that Turkey violated the procedural side of its duty to safeguard by allowing the mining operations to continue, despite the fact that the operating permit was ruled invalid in an enforceable judgement.
In Tãtar v. Romania from 2009, Romania was held responsible for risks to health and the environment associated with a mineral extraction plant. Unlike Taskin, there was no impact assessment establishing a “sufficiently close link” between the pollution risk and protected interests, but this was, under the circumstances, and in light of a prior accident, not of decisive importance.105Tãtar v. Romania, Sections 93. The risk of a sudden detoriation was a relevant factor to the Court’s assessment.
In Hardy and Maile v. United Kingdom from 2012, the State, citing Asselbourg, argued that the appellants had not demonstrated a sufficiently detailed probability of injury risk in a hypothetical scenario of a collision in a port area with LNG terminals, potentially posing a risk of explosion.106 Hardy and Maile v. United Kingdom, Section 185. The ECtHR did not mention Asselbourg. Instead, the Court relied on legal principles established in the subsequent decisions, Taskin et al. and Tãtar. The Court concluded that the potential risk of a hypothetical collision incident near the LNG terminals was sufficient to establish a “sufficiently close link” with the appellants’ private life and home.107 Hardy and Maile v. United Kingdom, Section 189 ff.
In Cordella et al. v. Italy from 2019, Italy was held responsible for allowing the continuation of a polluting situation despite being presented with reports on the health hazards associated with the activities since the 1970s.108 Cordella et al. v. Italy, Sections 163 and 172. See also Vilnes et al. v. Norway, in which Norway was held responsible for the “long-term effects on human health” due to inadequate information in connection with diving in the 1970s. Presumably, Norway has been responsible for this violation from a point in time before the diving took place, when information about the diving tables should have been provided.
While the ECtHR has not yet decided any cases concerning greenhouse gas emissions, there are a few European Supreme Court decisions on Article 8 (and 2) of the ECHR and climate risks.
The UK Supreme Court and the Norwegian Supreme Court considered Article 8 of the ECHR with respect to conditional planning licenses that would not, in themselves, cause significant greenhouse gas emissions. Both Article 8 and 2 were deemed inapplicable. The UK Supreme Court summarily dismissed claims under the ECHR as being in any event outside the scope of appeal. The Norwegian Supreme Court based its interpretations of Article 8 on ECtHR case law pertaining to incurred local environmental harm without discussing ECtHR case law on future and hypothetical environmental risks of planned activity. The oil and gas exploration licenses at issue in the case had at any rate not resulted in any exploitable findings of petroleum.
The Swiss Supreme Court has, as discussed above, dismissed the urgency of climate induced heat waves, whereas the Supreme Court of the Netherlands has held that the threat of dangerous climate change clearly poses a real and immediate risk under Articles 2 and 8 of the ECHR, from which the authorities are obliged to protect its citizens. In accordance with a review of the present ECtHR practice, the Court stated that
“no other conclusion can be drawn but that the State is required pursuant to Articles 2 and 8 ECHR to take measures to counter the genuine threat of dangerous climate change if this were merely a national problem. Given the findings above in paras. 4.2-4.7, after all, this constitutes a ‘real and immediate risk’ as referred to above in para. 5.2.2 and it entails the risk that the lives and welfare of Dutch residents could be seriously jeopardized. The same applies to, inter alia, the possible sharp rise in the sea level, which could render part of the Netherlands uninhabitable. The fact that this risk will only be able to materialize a few decades from now and that it will not impact specific persons or a specific group of persons but large parts of the population does not mean – contrary to the State’s assertions – that Articles 2 and 8 ECHR offer no protection from this threat (see above in para. 5.3.1 and the conclusion of paras. 5.2.2 and 5.2.3). This is consistent with the precautionary principle (see para. 5.3.2, above). The mere existence of a sufficiently genuine possibility that this risk will materialise means that suitable measures must be taken.”
The analysis of the Supreme Court of the Netherlands is based on established legal principles pursuant to Articles 2 and 8 of the ECHR, including the principle of effective rights protection and the precautionary principle. The analysis is not limited to the risks associated with rising sea level represents for a low-lying country. The German Constitutional Court has similarly held that the right to physical integrity under the German Constitution, places the state under an obligation to limit global warming. The Court references ECtHR case-law under Article 8 of the ECHR in this respect.
Potential and hypothetical risk that may not materialise for a period of up to 50 years, i.e. the year 2070 calculated from today, may in principle be encompassed by Article 8 of the ECHR.109See Taşkın et al. v. Turkey, Section 113. Climate change, by comparison, is not a hypothetical and potential risk, but a latent and existing risk that has already materialised.110IPCC 5th Assessment Report, Summary for Policymakers. If demonstrating that climate change as a result of emissions today will not occur until decades in the future was to relieve States of responsibility, the inertia of the temperature response will exclude the protection of the right to life and well-being against one of the most serious threats to the right to life and well-being, or “the ability of present and future generations to enjoy the right to life”, as the UN Human Rights Committee has formulated it.111See CCPR/C/GC/36, paragraph 62. As in Taşkın et al. v. Turkey, it can set the positive obligation to protect life and well-being “at naught”.112Cf. Taşkın et al. v. Turky Section 113.
The risk of dangerous climate change is latent and existing, and is substantiated in national and international risk assessments. The risk appears to have a “sufficiently close link” with the private life and well-being of vulnerable groups, if not today, then at least within a period of time accepted by the ECtHR. Hence, Article 8 of the ECHR applies.
5.7. Particular questions when applying Articles 2 and 8 of the ECHR to greenhouse gas emissions
5.7.1. Can individual States be held accountable for violations caused by multiple States?
An objection to asserting a positive obligation for the State to avert dangerous climate change is that climate change is not the result of emissions caused only by a single Convention State, but rather by emissions from every country in the world. In NIM’s view, however, this does not mean that the State is exempt from the positive duty to take action to safeguard its citizens from dangerous climate change under Articles 2 and 8 of the ECHR.113 Georgel and Georgeta Stoicesu v. Romania (9718/03) concludes that the positive obligation is an obligation concerning content, not result. There are several reasons for this.
5.7.2. ECtHR practice
Firstly, based on well-established ECtHR practice, a state is not exempted from responsibility because a potential violation is partly or primarily based on the actions of other countries. The Court held in Andrejeva v. Latvia that “the fact that the factual or legal situation complained of by the applicant is partly attributable to another State is not in itself decisive for the determination of the respondent State’s ‘jurisdiction’”.114Andrejeva v. Latvia [GC] (55707/00) § 56. In Soering v. United Kingdom, the ECtHR found that imminent expulsion or return from a Convention State to another State will violate the obligations of the Convention State under Article 3 of the ECHR, even though it is the other State that exposes the person in question to a real risk of torture, degrading or inhumane treatment or punishment. The Soering-principle has evolved in case-law to include multiple chains of causality, e.g. the return of a person to a country, where the person would be at a real risk of being sent to a third country, where the person in question will be at risk of degrading treatment, by the latter state or private parties.115 M.S.S. v. Belgium and Greece [GC] (30696/09), Hirsi Jamaa et al. v. Italy [GC] (27765/09). The ECtHR’s rationale is general and applies in principle not only to Article 3 of the ECHR but any Convention right.116O’Boyle et al. (2018), p. 248; O’Boyle, “Rights: reflections on the Soering case” in James O’Reilly (editor), Human Rights and Constitutional Law Essays in Honour of Brian Walsh (1992), p. 97. The Convention States are therefore obligated to do what they can within their jurisdictions, by refraining from contributions to potential harm, to protect individuals from real risk of the hypothetical actions or omissions by other countries.
5.7.3. Customary international law
Secondly, customary international law recognises that a state can be held individually responsible for actions that only partially contribute to the damage, and where the actions of other States are necessary and independent contributions. Customary international law is relevant in accordance with the ECtHR’s method to the interpretation of the ECHR, see Article 31 (3)(c) of the Vienna Convention.117 Bankovic et al. v. Belgium et al., Section 57. See Section 3.2.6. General rules of international law concerning state responsibility are stated in the Articles on State Responsibility for International Wrongful Acts, prepared by the UN International Law Commission and adopted by the UN General Assembly.118Articles on State Responsibility for International Wrongful Acts (ASR), Article 47. The articles are in large part regarded as an expression of customary international law. Article 47 (1)reads:
“Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be pleaded in relation to that act.”
The explanatory report on the provision states:119Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, p. 124, Section 1.
“Article 47 deals with the situation where there is a plurality of responsible States in respect of the same wrongful act. It states the general principle that in such cases each State is separately responsible for the conduct attributable to it, and that responsibility is not diminished or reduced by the fact that one or more other States are also responsible for the same act. (…)
Of course, situations can also arise where several States by separate internationally wrongful conduct have contributed to causing the same damage. For example, several States might contribute to polluting a river by the separate discharge of pollutants. […] In such cases, the responsibility of each participating State is determined individually, on the basis of its own conduct and by reference to its own international obligations.”
The provisions here are aimed only at acts that constitute violations of international law (hence the phrase “internationally wrongful acts”). In this sense they are relevant in situations where it is alleged that a State has violated international law (including the ECHR). The essence of the rules on State responsibility is that States are individually responsible under international law for their contributions to damage.
This responsibility is not limited or precluded by the fact that other States have contributed to the same damage.120Articles on Responsibility of States at Internationally Wrongful Acts, with commentaries, 2001, p. 124, Section 2. In the Corfu Channel case from 1949, for instance, the ICJ found that Albania was fully responsible for the loss of life and material damage to British vessels as a result of mine explosions in Albanian waters, even though the mines had been placed there by a third country.121The ICJ concluded that the mines were of a German variety, and probably deployed by Yugoslavia. The ICJ found that Albania was obliged to try to “prevent the disaster”.122Corfu Channel (United Kingdom and Northern Ireland v. Albania), 9 April1949, p. 23. When Albania failed to take “all necessary steps” to prevent the potential disaster that mines in their waters represented to people and vessels, they were responsible and obligated to provide the United Kingdom with compensation for the damage directly inflicted by the actions of third countries.123Ibid.
States are also responsible for the consequences of transboundary environmental harm resulting from activities that are not prohibited by international law, as outlined in the UN International Law Commission’s Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, adopted by the UN General Assembly in 2006.124Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, 2006, Articles 2 and 4.
5.7.4. Specialised rules of international law on greenhouse gas emissions
Thirdly, the lex specialis rules of international law on greenhouse gas emissions set out that every country has “common but differentiated responsibilities” to reduce greenhouse gas emissions to prevent dangerous climate change, see the preamble, sixth paragraph, Article 3 (1), Article 4 (1) of theUN Framework Convention on Climate Change (UNFCCC),as well as the preamble, third paragraph. Under the Paris Agreement, account should also be taken of states’ “respective capabilities”.125Paris Agreement, preamble, article 2.2, 4.3 and 4.19. Under Article 2 of the UNFCCC, the objective is to stabilise the concentration of greenhouse gases in the atmosphere at a level “that would prevent dangerous anthropogenic interference with the climate system”, defined in Article 1 no. 1, inter alia, as “changes in the physical environment or biota resulting from climate change which would have significant deleterious effects on […] human health and welfare”. In order to prevent such dangerous changes, the parties shall “protect the climate system for the benefit of present and future generations of humankind”. Developed countries, given their historical responsibilities and resources, “should take the lead”, see the UNFCCC Article 3 (1). According to the ECtHR’s method, specialised international climate rules are in principle relevant to the interpretation of the ECHR.126 Demir and Baykara v. Turkey. See also section 5.2.6.
5.7.5. National responsibility rules
Finally, it can be added that basic rules of responsibility in the law of damages, which are common in the national legal systems of the Convention States and in the EU, operate on the principle of joint and several liability. Under the circumstances, it may also be a relevant source of law for the ECtHR’s interpretation of the ECHR.127 Agrotexim et al. v. Greece (15/1994/462/543), Section 66; Goodwin v. United Kingdom (17488/90), Section 39. See further details in Kjølbro (2020), p. 33.
Two persisting objections are that if a single State is held responsible, other States may become freeloaders, and that emissions from a single State may be marginal compared to global emissions. However, the consequence of these objections are that any country can then evade partial responsibility for greenhouse gas emissions by pointing to other countries or to the size of its own relative contribution, so that no country can be held responsible if greenhouse gas emissions exceed an existentially dangerous level. This argument may be inconsistent with general principles of international law, such as the rules on state responsibility for international law violations and international liability for damages for transboundary harmful acts.128Articles on State Responsibility, Article 47, see also Principles of the allocation of loss in the case of transboundary harm arising out of hazardous activities, 2006, inter alia, Articles 2 and 4. It may also be inconsistent with Article 31 of the Vienna Convention, according to which a treaty shall be interpreted based on the wording of the text, as well as the object and purpose of the treaty. The interpretaion of Articles 2 and 8 in this context should thus promote the overall purpose of the ECHR regarding the protection of individuals and the purpose of the Statute of the Council of Europe regarding the protection of human society and civilization.
The Supreme Court of the Netherlands stated this as follows:
“Indeed, acceptance of these defences would mean that a country could easily evade its partial responsibility by pointing out other countries or its own small share. If, on the other hand, this defence is ruled out, each country can be effectively called to account for its share of emissions and the chance of all countries actually making their contribution will be greatest, in accordance with the principles laid down in the preamble to the UNFCCC cited above in 5.7.2.
Also important in this context is that, as has been considered in 4.6 above about the carbon budget, each reduction of greenhouse gas emissions has a positive effect on combating dangerous climate change, as every reduction means that more room remains in the carbon budget. The defence that a duty to reduce greenhouse gas emissions on the part of the individual states does not help because other countries will continue their emissions cannot be accepted for this reason either: no reduction is negligible.”129The Supreme Court of the Netherlands in Urgenda v. Netherlands, Sections 5.7.7 and 5.7.8.
The Supreme Court of the Netherlands concluded that Articles 2 and 8 of the ECHR entail positive obligations for the Convention States “to do ‘their part’” to prevent dangerous climate change. The Court considered this interpretation “sufficiently clear” based on the case law of the ECtHR and other principles of interpretation, eliminating the need to request an advisory opinion from the ECtHR, see Protocol No. 16, Article 1.130The Supreme Court of the Netherlands in Urgenda v. Netherlands, Section 5.6.4. Protocol no. 16 has been ratified by the Netherlands. The protocol has been signed, but not ratified, by Norway. An overview of the ratification status is available here: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/214/signatures?p_auth=JxEGRcU8 Similarly, the Administrative Tribunal of Paris has held France responsible for having contributed to “une partie” of the ecological harm caused by greenhouse gas emissions by overstepping national carbon budget.131Notre Affaire à Tous and Others v. France (2021) no. 1904967, 1904968, 1904972, 1904976/4-1 (Administrative Court of Paris), para. 34. The German Constitutional Court has also dismissed arguments to the effect that the State can evade its responsibility by pointing to emissions in other States.132Neubauer et al. v. Germany, para. 203.
Based on ECtHR case law, supported by international law, tort law and EU-law, this conclusion appears the most obvious one: States cannot evade responsibility for climate induced human rights violations simply because greenhouse gas emissions are caused also by other States.
5.8. Positive obligations relating to climate change risks
Based on the assumption that Articles 2 and/or 8 of the ECHR apply to the dangerous risks associated with climate change, this part will discuss the content of the positive obligation under these provisions. In accordance with the ECtHR’s practice, the positive obligation has both substantive and a procedural elements.133 Taşkın et al. v. Turkey, Sections 115 ff.
5.8.2. Substantive element of the positive obligation
The substantive element entails that the ECtHR will consider “the substantive merits of the national authorities’ decision” to ensure that it is compatible with the requirements pursuant to Article 2 or 8 of the ECHR.134 Hatton et al. v. United Kingdom Section 99; Taşkın et al. v. Turkey, Section 115. The ECtHR will assess whether the State has taken “appropriate steps” to prevent the risk. The onus lies on the State135Fadeyeva v. Russia, no. 55723/00, §§ 129-130; Jugheli and Others v. Georgia, no. 38342/05, § 76; Dubetska and Others v. Ukraine, no. 30499/03, § 155; Cordella, § 161. Similarly, Urgenda, para. 5.3.3. to provide “sufficient explanation”, including “using detailed and rigorous data”,136Dubetska, § 155; Fadeyeva, § 128; Jugheli, § 76. that its measures are reasonable and appropriate, i.e that it has provided an “effective solution” to the risk of harm and “effective protection” of the applicant.137Öneryildiz, § 89 (“effective deterrence against threats to the right to life”); Budayeva, § 132 (“effective protection of citizens whose lives might be endangered by the inherent risks”; Fadeyeva, § 133 (“effective solution”, “effective measures”); Dubetska, § 155 (“effective solution”); Brincat § 110 (“effective protection”). However, the obligation is one of means rather than results and an “impossible or disproportionate burden must not be imposed on the authorities”.138Stoicesu, §§ 51, 59. The Court initially held in Lopez Ostra (§ 51) and recently in Cordella (§ 158), that States enjoy a “certain margin of appreciation” in environmental issues. Budayeva suggests that the margin be narrower with respect to risks “of a man-made nature”, such as climate change, as opposed to natural disasters “beyond human control”.139Budayeva, §§ 134-135, 137.
State authorities do not have the freedom to choose whether or not to take adequate and necessary measures, but the ECtHR may grant a wide margin of discretion in the choice of specific measures implemented to prevent the risk.140 Hatton et al. v. United Kingdom, Section 100; Buckley v. United Kingdom (20348/92), Sections 74–77.
The positive obligation pursuant to Articles 2 and 8 of the ECHR in the environmental area is, as mentioned above, preventative, in order to safeguard against potential risks. The ECtHR has accepted a greater degree of uncertainty here, with reference to the precautionary principle.141Tãtar v. Romania, Section 120, which states: “En ce sens, la Cour rappelle l’importance du principe de précaution (consacré pour la première fois par la Déclaration de Rio), qui “a vocation à s’appliquer en vue d’assurer un niveau de protection élevée de la santé, de la sécurité des consommateurs et de l’environnement, dans l’ensemble des activités de la Communauté.” The precautionary principle means that scientific uncertainty about the likelihood of potential environmental damage does not exempt States from a positive obligation to prevent risk.142See e.g. Article 3 (3)of the UNFCCC. This states that in cases of “threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing [precautionary] measures”.
The Supreme Court of the Netherlands held that the State was obligated to take “appropriate measures” against the threat of dangerous climate change.143Supreme Court of the Netherlands in Urgenda v. Netherlands, Sections 5.8–5.9.1. Even though the Dutch Court maintained that this “in principle” was a political question, it considered itself competent to decide whether the State had provided a sufficient explanation as to why its emissions cuts were below a minimum limit to combat dangerous climate change.144Paragraph 6.3–6.6
In determining this lower limit, the Supreme Court of the Netherlands applied the ECtHR’s “common ground” doctrine. The Court pointed out that there is a “high degree of international consensus on the urgent need” for the developed countries listed in Annex 1 of the UNFCCC to reduce greenhouse gas emissions by at least 25-40 percent by 2020, compared with 1990 levels, based on IPCC scenario AR4 from 2007.145 Urgenda v. Netherlands, Section 7.2.11. This was based on the “widely supported view of states and international organisations, which view is also based on the insights form of climate science”.146 Urgenda, paragraph 6.3. See also section 5.2 above. The reduction rate is anchored to Articles 3 and 4 of the UNFCCC and has been included in the resolution of the Bali Climate Change Conference in 2007 (COP-13), the preambles of the resolutions of the Cancùn Climate Change Conference in 2010 (COP-16), Durban in 2011 (COP-17) and Doha in 2012 (COP-18), as well as the resolutions adopted at the climate change conference in Warsaw in 2013 (COP 19), Lima in 2014 (COP-20) and Paris in 2015 (COP-21). The reduction rate has also been supported by the EU.147See most recently COM/2020/562 final, 17 September 2020, Stepping up Europe’s 2050 climate ambition, where the European Commission sets an emissions reduction target of 55% by 2030. The Commission points out that the IPCC’s most recent special reports conclude a greater risk of tipping points in the Earth’s climate system with less warming than the 5th The IPCC report. Based on the “common ground” doctrine, the Court considered the Netherlands to be obligated to reduce greenhouse gas emissions by at least 25 per cent by the end of 2020.
The Court’s application of the common ground doctrine in line with ECtHR practices.148 Demir and Baykara v. Turkey, Sections 85–86. As mentioned above, the ECtHR takes into account specialised rules and principles of international law, provided they express a “common ground in modern societies”.149 Demir and Baykara v. Turkey, Section 86. This includes “scientific and societal developments”. Since a minimum 25 per cent emission reduction was not legally binding by itself, the Dutch Supreme Court nevertheless exercised restraint with respect to reviews outside of “clear-cut cases”.150 Urgenda, paragraph 6.6.
The Urgenda decision concerned emission cuts by the end of 2020. With respect to emission cuts required to limit global warming to 1.5 degrees going forward, the ECtHR’s common ground doctrine suggests that the assessment of whether a State has taken all necessary and sufficient measures should be made in light of its commitments under the UNFCCC and the Paris Agreement, best available science151Brincat, § 112; Rees v. the United Kingdom, no. 9532/81, § 47; Cossey v. the United Kingdom, no. 10843/84, § 40; Fretté v. France, no. 36515/97, §42; S.H. & Ors v. Austria, no. 57813/00, §§ 97-118; Dubská and Krejzová v Czech Republic, no. 28859/11 and 28473/12, §100; Oluić v. Croatia, no. 22330/05, §§ 29-31. and the international consensus regarding the emissions reductions required to limit warming to 1.5 degrees.152Demir and Baykara v. Turkey, no. 34503/97 [GC], § 85; See also the interpretation of the Paris Agreement in domestic human rights cases such as Nature and Youth Norway and others v. Norway, paras. 56-60; Grande Synthe v. France, paras. 8-13; Plan B v. the United Kingdom  EWCA Civ 214; Urgenda, section 5. States’ margin of appreciation should be confined to the choice of means in relation to this target. In addition, as pointed out by the Dutch Supreme Court and the German Constitutional Court, the precautionary principle implies that States’ minimum reduction rates should not rely on negative-emission technologies to remove CO2 from the atmosphere, many of which do not yet exist or are still at early stages of development.
Budayeva, as well as the principle of intergenerational equity, further suggests a narrow margin of appreciation since climate change is essentially of a “man-made nature” and a failure to stay within the 1.5-degree target will dramatically limit the choice of means available to younger generations. Moreover, since failure to cut emissions sufficiently today would irreversibly offload a drastic obligation to cut emissions in the near future, avoiding an “impossible or disproportionate burden” for the Contracting States supports more stringent emission cuts today, not less. This would safeguard political leeway in an intertemporal sense, as well as protecting fundamental rights in the future against irrevocable ifringements today (Neubauer et al. v. Germany).
The IPCC’s 2018 report states that global emissions must be cut by 45 per cent from 2010 levels by 2030, and reach “net zero” by 2050 to limit warming to 1.5 degrees. As mentioned above, ratifying States are committed to emissions cuts based on their “highest possible ambition” under Article 4.3 of the Paris Agreement. Under Article 2.1(c), States are obliged to follow a “pathway towards low greenhouse gas emissions and climate-resilient development.” It cannot be assumed that a reduction rate less ambitious than the IPCC report’s emissions trajectory to reach the 1.5-degree target could be deemed adequate and necessary to avert harmful climate change. Moreover, since relevant IPCC scenarios on emission cuts to reach the 1.5 degree target presupposes large-scale negative technology that does not yet exist, the precautionary principle entails that emission cuts ought to be even higher. As noted by the German Constitutional Court, however, a specific reduction target in the future is in itself devoid of meaning, if it does not also set out a specified annual reduction rate based on scientific findings on the residual carbon budget. To this end, the German Constitutional Court relied on assessments by the IPCC and the German Council of Experts in Environmental Affairs.
5.8.3. Procedural element of the positive obligation
The procedural element of the positive obligation entails that the ECtHR will review the decision-making process to ensure that sufficient emphasis has been placed on the interests of individuals.153 Taşkın et al. v. Turkey, Section 115, see also Hatton et al. v. United Kingdom, Section 99. The requirements made for the decision-making process are preventive by their nature, and have three components:
- The State must conduct the necessary reports 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”.154 Taşkın et al. v. Turkey, Section 119; Hatton et al. v. United Kingdom, Section 128; Tătar v. Romania, Section 88.
- Information from such reports and studies must be publicly available so that the citizens are able to assess in advance “the danger to which they are exposed”.155 Taşkın et al. v. Turkey, Section 119; Guerra et al. v. Italy, Section 60; McGinley and Egan v. United Kingdom (10/1997/794/995-996), Section 97; Tătar v. Romania, Section 88.
- The citizens must be able to attack the validity of any decision, action or omission at any stage of the process.156 Hatton et al. v. United Kingdom, Section 127; Taşkın et al. v. Turkey, Section 119; Tătar v. Romania, Section 88.
While the substantive requirements derived by the Supreme Court of the Netherlands concern the minimum targets for the total emission reductions, the procedural requirements set out by the ECtHR also apply to specific decision-making processes that may entail significant emissions.
The procedural element of the positive obligation under Articles 2 and 8 of the ECHR will probably require that State authorities at an early stage assess and make information available on the potential climate and human rights consequences of permits to extract carbon from geological deposits with the goal of combustion to the atmosphere. Such information will probably have to shed light on potential and total greenhouse gas emissions compared with the remaining carbon budget and Norway’s partial responsibility under the UNFCCC and the Paris Agreement with the goal of limiting warming to 1.5 degrees.157 Plan B v. United Kingdom, EXCA Civ 214, 27 February 2020; Friends of the Irish Environment v. Ireland, IESC 49, 31 July 2020.July 2020. A positive obligation to assess risks and make assessments available in advance is not just of importance so that citizens are able to assess the risk that they and their descendants will be exposed to by permits that will allow significant sources of emissions in the long term, but also so that voters can make informed decisions and hold politicians accountable in elections.158Supreme Court of Ireland in Friends of the Irish Environment v. Ireland.
Based on the ECtHR’s practice, the authorities will have to make predictions about the risk of pollution based on the evidence base available to the State, even if it is uncertain.159 Guerra et al. v. Italy, Section 60. Here, the residents were given information about what type of pollution hazard they had been exposed to when the factory finished this part of its production in 1994. The ECtHR concluded that Article 8 of the ECHR had been violated. If the residents were to have been able to assess the risk associated with living in the city, they would have had to receive predictions about the risk of pollution in advance, and not certain information about the exact risk after the fact. However, the precautionary principle indicates that such uncertainty must be resolved in favour of the environment. In the case of greenhouse gas emissions, the authorities can therefore probably not rely on vague assumptions about technological developments in the future that are currently unavailable or scalable, or uncertain assumptions about carbon leakage internationally.160For more, see the Supreme Court of Ireland in Friends of the Irish Environment v. Ireland.
Based on the above, a positive obligation to avert dangerous climate change can arguably be established for the purposes of Articles 2 and 8 of the ECHR.161See further details in Section 5.4-5.7. This could give rise to a substantive obligation to reduce greenhouse gas emissions at a scale and pace sufficient to reach a “common ground”-based tolerance limit on warming of 1.5 degrees, and in any case well below 2 degrees. In terms of procedural obligations, we have outlined the requirements set out by the ECtHR for specific decision-making processes. We have concluded that this will likely require the authorities to assess and provide information on the impacts of permits allowing for significant greenhouse gas emissions, based on a precautionary approach, to safeguard the substantive duty to avert dangerous climate change.
5.9. Procedural conditions – in particular the victim requirement in Article 34 of the ECHR
5.9.1. The significance of procedural conditions in the climate area
Articles 34 and 35 of the ECHR set out the conditions for appealing to the ECtHR. Article 34 of the ECHR states, among other things, that the appeal must be made by someone claiming to be a victim of a convention violation. Climate change principally applies to future risks that may be difficult to individualize in advance. Thus, procedural conditions could constitute a practical obstacle to reviewing appeals over greenhouse gas emissions submitted by individuals to the ECtHR. In national law, environmental organisations have traditionally played a decisive role in promoting such broader public interests where environmental threats interfere. In Norway, for instance, organisations can plead personal ECHR rights in their own name pursuant to the Dispute Act, Section 1-4. A related question is whether Article 34 of the ECHR can be interpreted to allow appeals to the ECtHR from organisations on these types of issues.
5.9.2. Overview of the “victim” requirement pursuant to Article 34 of the ECHR
Article 34 of the ECHR grants the right of appeal to natural and legal persons, non-governmental organisations and groups of individuals, provided they can claim to be a victim of an alleged violation of the Convention. A “victim” is understood to mean the person or persons directly or indirectly affected by an alleged violation.162 Vallianatos et al. v. Greece [GC] (29381/09 and 32684/09), Section 47. With respect to future environmental harm, the Court initially held in Asselbourg that it is only in “wholly exceptional circumstances” that a risk of future violations may result in the conferral of victim status. However, subsequent case-law suggests that the threshold is lower today. For example, neither in Taşkın (§ 113) nor Hardy and Maile (§ 191) did the Court question the applicants’ victim status, even though the cases concerned hypothetical risks of environmental harm in the future.163Taşkin, § 113; Hardy and Maile, § 191; Tătar v. Romania, no. 67021/01.
Associations can appeal on behalf of directly affected individual members under a power of attorney, or appeal in their own name over alleged violations, in which the association, at least in principle, is itself “directly affected”.164Kjølbro (2020), p. 121. Since associations as natural persons do not have a right to life under Article 2 of the ECHR and can in principle not claim a separate right to health under Article 8 of the ECHR, one can ask whether associations can be in a position procedurally to claim a violation of these provisions in their own name.165 Identoba v. Georgia (73235/12), Section 45; Greenpeace E.V. et al. v. Germany (18215/06).
However, this issue must be further clarified. The question is not whether organisations can claim their own right to life or health, but whether they can file an appeal in their own name for violations that will jointly affect several members of the association. Kjølbro notes that there is “some doubt” regarding this question.166Kjølbro (2020), p. 121. He concludes that associations “presumably” can also be entitled to appeal if a sufficient number of the association’s members are directly affected.167Kjølbro (2020), p. 121. We will discuss this question in more detail in the following.
5.9.3. Can organisations appeal in their own name against violations that will affect their members?
In accordance with ECtHR case law, the point of departure is that normally the association itself must be “directly affected” in order to appeal.168 British Gurkha Welfare Society et al. v. United Kingdom (44818/11), Section 50. This requirement is typically used as justification for dismissing appeals from associations in cases where there are specific individuals who have allegedly been subjected to a violation and who have either appealed or will be able to appeal on their own behalf.169See, for example, Identoba v. Georgia, Section 45; Vallianatos et al. v. Greece, Section 47. This differs from appeals from associations concerning the future effects of greenhouse gas emissions, which are precisely characterised by the fact that individuals who are the most obvious parties to appeal the alleged violations cannot be easily identified.170The Swiss Supreme Court’s decision of 5 May 2020 illustrates how difficult it will be for individuals to prove that they are at present individually and particularly affected by climate change.
The Court interprets the victim-requirement dynamically, and has warned that an “excessively formalistic” interpretation would make rights protection “ineffectual and illusory”.171Gorraiz Lizarraga et al. v. Spain, no. 62543/00, § 38; Monnat v. Switzerland, no. 73604/01, §§ 30-33. In general, Article 34 does not allow actio popularis and complaints in abstracto. However, the Court has in several cases accepted complaints of a general nature from individuals residing in regions were all residents would be equally exposed to pollution, even though the risk could not be proven and specified at the individual level.172Cordella et al. v. Italy, no. 54414/13 and 54264/15, § 100-107. See also, Taşkin et al. v. Turkey, no. 46117/99; Hardy and Maile v. the United Kingdom, no. 31965/07. Similarly, case-law on secret surveillance suggests that an alleged violation may affect a larger group of people or an entire population without undermining the victim status of specific applicants.173 Zakharov v. Russia, no. 47143/06, § 168; Klass et al. v. Germany, no. 5029/71, § 37.
In cases where it would be impossible for appellants to demonstrate that they are directly or indirectly affected by an alleged violation, the ECtHR has allowed the abstract review of laws that have a structural effect. One type of case is secret surveillance.174 Roman Zakharov v. Russia [GC] (47143/06) Sections 173–178. In Klass et al. v. Germany, the Commission justified the exception as follows:
“The question arises in the presented proceedings whether an individual is to be deprived of the opportunity of lodging an application with the Commission because, owing to the secrecy of the measures objected to, he cannot point to any concrete measure specifically affecting him. In the Court’s view, the effectiveness (l’effet utile) of the Convention implies in such circumstances some possibility of having access to the Commission. If this was not so, the efficiency of the Convention’s enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious.”175 Klass et al. v. Germany, Section 34.
In these types of cases, a formalistic interpretation of the “victim” requirement would thus exclude appeals concerning secret surveillance precisely because the surveillance is secret.
A corresponding impossibility characterises appeals over greenhouse gas emissions that could violate the right to life and integrity of the person. It is a scientific fact that the current emission rate (42 Gt CO2 per year) gives us less than 10 years before the remaining carbon budget to achieve the 1.5-degree target with a 66 per cent probability will be exceeded.176IPCC’s carbon budget, cited in the Court of Appeal’s judgement, Section 3.1. See: www.globalcarbonproject.org/carbonbudget. This will ensure irreversible and dangerous climate change, which will then no longer be possible to avert. At the same time, it may be difficult today to specify which individuals bear a real and individualised risk of losing their lives in landslides, wildfires, avalanches, floods, heatwaves, pandemics and hurricanes that greenhouse gas emissions today cause with a latent and delayed effect in the future.177See Chapter 2 of the report, written by CICERO on commission from NIM concerning impact time.
A formalistic interpretation of the “victim” requirement will therefore in practice entail, as in Klass v. Germany, that individuals are deprived of their access to appeal to the ECtHR because of the actual violation he or she is appealing against. Just as the secrecy constitutes at the same time the violation and the procedural obstacle in Klass, it is the temperature response to the greenhouse gas emissions with its inherent inertia that constitutes at the same time the violation and the procedural obstacle in appeals concerning greenhouse gas emissions.
The ECtHR has also considered the substance of appeals in abstracto from associations in cases concerning mass/bulk surveillance, where potential violations may affect everyone and anyone, and where it will not be possible to demonstrate specified individual violations.178 Centrum för rättvisa v. Sweden (35253/08), Section 92 and Big Brother Watch et al. v. United Kingdom (58170/13, 62322/14 and 24960/15). Both cases are being heard by the ECtHR’s grand chamber and no final decision has yet been made. Two additional appeals filed by associations have been communicated, see Privacy International et al. v. United Kingdom (46259/16) and Bureau of Investigative Journalism and Alice Ross v. United Kingdom (62322/14). Such cases are related to the rights the associations themselves have as legal persons, but generally apply to the existence of legislation that allows mass surveillance in bulk and potentially allows secret surveillance of anyone. In Centrum för rättvisa v. Sweden, for example, the ECtHR gave the association “victim” status, despite the fact that the appeal concerned the existence in abstracto of legislation, and despite the fact that the association could not demonstrate any specified individual violation, because it concerned a “system of signal intelligence that potentially affects all users of, example, mobile telephone services and the internet”.
Since climate change, as opposed to secret surveillance and bulk surveillance, may in its ultimate consequence entail irreversible changes to the possibility of life in the foreseeable future, a formalistic understanding of the “victim” requirement will also lead to the following paradox:
Today, when it is still possible to guard against emissions that will lead to dangerous climate change, appeals concerning the right to life and integrity of the person can conceivably be cut off procedurally because they cannot be adequately individualised. When climate change becomes so dramatic over time that a requirement for the individualisation of the loss of life and health can be met without difficulty by a large numbers of appeals, individuals will no longer have an opportunity to guard against the causes of climate change, because CO2 in excess of the 1.5 degree target (430 ppm CO2), or even the 2 degree target (450 ppm CO2), has already been extracted and combusted.179For more, see Chapter 2 of the report written by CICERO, and www.globalcarbonproject.org.
Representative appeals from collective entities, such as environmental protection associations, could be a way in which individuals can effectively and genuinely enforce rights in this area today. Consideration for effective rights protection may thus imply that the ECtHR could be persuaded to grant “victim” status to environmental protection associations, precisely because collective entities will be able to represent a community of affected interests, even if the interests of individual members alone are probably not adequately assessed in isolation. In addition, the complexity of the administrative decisions such appeals may conceivably challenge will involve genuine obstacles that a collective entity can practically and in terms of resources have better resources for overcoming than private individuals.
The ECtHR reasoned along these lines in an environmental case concerning the location of a dam that would flood a village, Gorraiz Lizarraga et al. v. Spain. Here, the Court justified an expansive interpretation of the term “victim” by the fact that collective entities such as associations are becoming increasingly important in modern societies in order for individuals to have remedies available to ensure effectiveness.180Gorraiz Lizarraga et al. v. Spain, Section 38. The ECtHR therefore allowed both the environmental protection association and individual members, who had not been a party to the national legal action, the right of appeal to the ECtHR. The Court pointed out that the term “victim” must be interpreted dynamically, and then stated the following:
“And indeed, in modern-day societies, when citizens are confronted with particularly complex administrative decisions, recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to them whereby they can defend their particular interests effectively. Moreover, the standing of associations to bring legal proceedings in defence of their members’ interests is recognised by the legislation of most European countries. That is precisely the situation that obtained in the present case. The Court cannot disregard that fact when interpreting the concept of ‘victim’. Any other, excessively formalistic, interpretation of that concept would make protection of the rights guaranteed by the Convention ineffectual and illusory.”181 Gorraiz Lizarraga et al. v. Spain, Section 38.
The ECtHR has also in other contexts emphasised the importance of environmental protection associations to prevent and appeal violations of environmental rights.182See, for example, Costel Popa v. Romania (47558/10). Sicilianos has even pointed out that the right to establish associations can prove to be very important in filing appeals concerning environmental law violations to the ECtHR.183Sicilianos, published speech of 27 February 2020, mentioned above.
An exception for environmental protection associations may draw on the justification for representative legal actions, as this institution has emerged in European legal systems. The ECtHR may attach weight to whether an interpretation is in accordance with what follows from the legal systems of several Convention States.184See Agrotexim et al. v. Greece, Section 66; Goodwin v. United Kingdom, Section 39. In Gorraiz Lizarraga et al., the ECtHR justified a dynamic interpretation of Articles 34 and 35 of the ECHR, inter alia, by highlighting that the right for associations to bring legal actions to defend the interests of their members “is recognised by the legislation of most European countries”.185See Gorraiz Lizarraga et al. v. Spain, Section 38.
According to Rt. 2005, p. 844 (para. 45), Norwegian courts will, in cases of doubt over the interpretation of the ECHR, also be able to rely on “value priorities on which Norwegian legislation and interpretation of law is based”. The institution of representative legal actions was originally justified in Norwegian law by environmental protection associations representing broader idealistic and public interests that otherwise could or would not be pleaded before the courts.186See Rt. 1980 p. 569, Rt. 1992 p. 1618 and Rt. 2003 p. 833. The preparatory work of the Dispute Act points out that associations and foundations in particular “emerge as important bearers of public and idealistic interests in civil society”, see Proposition No. 52 (2004–2005) to the Odelsting, p. 356. In cases where individuals will not be affected to such an extent that they themselves can take legal action, organisations are also considered entitled to take legal action under Norwegian law since they represent the sum total of affected interests, see Rt. 1914 p. 419, Rt. 1952 p. 554, Rt. 1980 p. 569 and Rt. 1987 p. 538. Schei et al. note that an organisation has an interest as a party to a legal action in such cases “precisely because it represents a community – the affected parties – and where individual members are unlikely to be affected to such an extent that they could take legal action”.187Schei et al., Tvisteloven kommentarutgave (Dispute Act Commentary Edition), 2nd edition, Volume I, p. 60.
Such considerations are particularly relevant to questions concerning greenhouse gas emissions. This is because the consequences of emissions most strongly threaten those who lack procedural capacity pursuant to section 2-2 (2) of the Dispute Act, and the independent right of appeal pursuant to Article 34 of the ECHR today. Those are the children and young people who will live until and past 2100, and who in their lifetime, and in the lifetime of their children, will be exposed to dramatic and irreversible climate change unless greenhouse gas emissions are significantly reduced within a few years from now.
Accordingly, we believe there are several grounds supporting the assumption that the ECtHR will treat environmental protection associations appealing potential violations resulting from greenhouse gas emissions as a type of case outside of the cases in which the association itself is “normally” required to be directly affected.188Cf. British Gurkha Association et al. v. United Kingdom.
5.9.4. Can individuals appeal to the ECtHR when the legal action has been filed by an organisation?
Whether an environmental organisation can appeal in its own name may nevertheless not be decisive. ECtHR practice shows that it is possible to differentiate the composition of appellants before the ECtHR, so that individual members of the association stand as co-appellants, without having taken part in the national legal action in their own name. In Gorraiz Lizarraga et al. v. Spain, the ECtHR accepted appeals from individual members of an environmental protection association that had not been part of the association’s legal action.189 Gorraiz Lizarraga et al. v. Spain, Section 39. The decision is understood to mean that individual members of an environmental protection association will be eligible to appeal without regard to whether they themselves have exhausted national remedies, provided that the action is considered filed through an association.190 Bursa Barosu Baskanligi et al. v. Turkey, No. 25680/05, 19/06/2018, Section 115. On the other hand, non-members who have not in any way participated in the association’s legal action will have to exhaust the national legal remedies before being able to appeal to the ECtHR in their own name.191 Bursa Barosu Baskanligi et al. v. Turkey, Section 115.
Even though the ECHR’s procedural conditions may constitute a practical obstacle with regard to appeals concerning greenhouse gas emissions to the ECtHR today, there is sufficient basis in the sources of law to suggest that the ECtHR might adapt a calibrated approach to ensure an effective review of the rights pleaded.192For more on this, see Sicilianos’s speech, 27 February 2020.
This chapter has analysed the extent to which Articles 2 and 8 of the ECHR could establish a positive obligation on the authorities to do their part to prevent dangerous climate change. We have concluded that the existing sources of law indicate that Articles 2 and 8 of the ECHR apply to the risk of dangerous climate change resulting from greenhouse gas emissions. We have also concluded that States cannot evade responsibility because of the global nature of greenhouse gas emissions and outlined the various procedural and substantive obligations that States probably have in accordance with the present practice of the ECtHR to protect their citizens from the dangerous impacts of climate change.
We want to emphasise that these questions are yet to be decided authoritively by the ECtHR. It is also debatable how far national courts should go in interpreting the Convention in the ECtHR’s place. At the same time, one could ask whether this is really a matter of reinterpreting Articles 2 and 8 of the ECHR. It is perhaps more natural to characterise it as the logical application and extension of established legal principles from the ECtHR’s case law to a new set of facts.