Climate Change and Human Rights

Utilizing the European Convention on Human Rights for Disaster Risk Reduction in the Arctic and Beyond

When talking about climate change and human rights, we often first think of the impact climate change has on people. In the Arctic, we can see this particularly well. We see reindeer going hungry and tourists roaming the streets of Rovaniemi in search of pre-Christmas snow. All of this has economic implications and, in the case of indigenous reindeer herders, also implications for the exercise of cultural rights. But climate change also has direct implications for human health and safety. We have seen this in many different countries when floods and droughts have endangered human lives and livelihoods. In the Arctic, health threats as a consequence of human rights have gained global attention due to the emergence of the anthrax virus as the permafrost is melting, to give just one example. And we also see outsiders coming to the Arctic in search of opportunities, and I include myself in this, too. There are mining and tourism companies from halfway around the world that see the Arctic as a place where to make a profit, and as a resource. The impacts may be different, but in many cases, the pattern is the same: profits are moved outside the region and the economic benefits on the local level, while not non-existent, are limited. A mine operates for a few years, the tourism season is just a few months long, and so on. Livelihoods, cultures, health, and safety, are part of the price paid by Arctic communities.

International human rights law can play an important role in the facilitation of climate justice. In recent years, there have been more and more, also high-profile, cases on climate justice in international human rights courts. Today, I want to talk about a case that has not yet been decided and that is currently pending at the European Court of Human Rights. In fact, the case of Cláudia Duarte Agostinho and others has been pending since September 2020, which is not unusually long, given the high workload of the European Court of Human Rights. What makes this case special is that the applicants are young - and that they sue not one state, but over thirty countries that are parties to the European Convention on Human Rights.

When the application was submitted, the six applicants were aged 8 to 21, but the case concerns not only the future but really the present. It deals with greenhouse gas emissions emanating from over thirty states that are parties to the European Convention on Human Rights. These emissions contribute to global warming and manifest themselves, among other things, by heat peaks which would, as is claimed by the applicants, impact the living conditions and the health of the applicants. The applicants argue that the forest fires that Portugal has been experiencing every year for some years, in particular since 2017, are the direct result of this global warming. The applicants allege that they are at risk of contracting health problems because of these fires and have already had, following or during forest fires, sleep disorders, allergies, and breathing difficulties, all exacerbated by the very high temperatures. high during the hot season. During forest fires that sometimes occurred several times a year, they were unable to spend time outdoors to play or exercise, and schools were temporarily closed. The fifth and sixth applicants point out that climate change causes very powerful storms in winter and claim that their house, located in Lisbon, is very close to the sea and potentially in danger of suffering the ravages of such storms. This risk is not too distant for many people who live in coastal communities in the Arctic, where some coastal communities, for example in Alaska’s North Slope, are forced to relocate, sharing the fate of coastal communities elsewhere, for example in Greenland. Climate change is a reality in the Arctic already today.

The applicants also claim to feel anxious about natural disasters such as forest fires which have caused the death of more than a hundred people, which have already occurred in their neighbourhood and which they have sometimes witnessed. Their anxiety is, moreover, linked to the prospect of living in an increasingly hot climate throughout their lives, which would impact them and the families they could find in the future.

The applicants complain about the non-compliance by the respondent States with their positive obligations under Articles 2 and 8 of the Convention, read in light of the commitments made under the 2015 Paris Climate Agreement. Article 2 ECHR protects the right to life and Article 8 ECHR protects the right to private life and is also the basis on which the European Court of Human Rights has developed its case law on the right to a healthy environment. The applicants link these human rights with Article 2 of the Paris Climate Agreement, namely to contain the rise in the average temperature of the planet well below 2 °C compared to pre-industrial levels and to continue the action taken to limit temperature rise to 1.5 °C above pre-industrial levels, with the understanding that this would significantly reduce the risks and effects of climate change. As we can see in the Arctic, and in many other places, we are well on course to go far beyond these scenarios.

The applicants also allege a violation of the equal treatment clause of Article 14 ECHR in conjunction with Articles 2 and/or 8 of the Convention, arguing that global warming affects their generation more particularly and that, given their age, interference with their rights is more pronounced than those in the rights of previous generations, given the deterioration of climatic conditions that will continue over time. The European Court of Human Rights has long recognized that the right to private life under Article 8 of the European Convention on Human Rights also includes a right to live in a healthy environment. Obligations under the ECHR also include positive obligations. The applicants in the Duarte Agostinho case claim that inaction on the part of states is violating their rights.

Given that four applicants are children, they argue that the above-mentioned provisions of the Convention must be read in the light of Article 3 (1) of the United Nations Convention on the Rights of the Child which requires that any decision concerning them be based on the paramount consideration of the best interests of the child. They are also based on the principle of intergenerational equity contained in several international instruments, including the 1992 Rio Declaration on Environment and Development, the Preamble to the Paris Agreement and the United Nations Framework Convention on Climate Change of 1992, according to which the right to development must be realized in such a way as to equitably meet the developmental and environmental needs of present and future generations. They believe that there is no objective and reasonable justification for placing the burden of climate change on younger generations through the adoption of inadequate measures to reduce global warming.

The first three applicants also complain of the difficulty, in view of the increasingly frequent droughts, of continuing to grow vegetables in their vegetable patch and of extracting water from the well on their family's property. The recurring forest fires in recent years have caused damage to their family's property, in particular, due to ash emissions. This experience will sound familiar to many people in the Arctic, in particular those who engage in local livelihoods, such as reindeer herding.

The applicants consider that the States have not fulfilled their obligations under the provisions of the Convention mentioned above, read in particular in the light of international treaties on the climate. The latter imposes on the signatory States the obligation to adopt measures to adequately regulate their contributions to climate change: by reducing emissions in their territory and in the other territories over which they have jurisdiction; prohibiting the export of fossil fuels; by offsetting their emissions resulting from the importation of the goods; and by limiting the release of broadcasts abroad.

These specific obligations exist even as States' contributions to global warming materialize outside their territory. By virtue of these obligations, the States must put in place concrete and effective measures, the evaluation of which is based on the analysis of the rate of reduction in emissions obtained by the implementation of these measures. In the present case, in view of the overrun of the target increase in warming, set at an increase of 1.5 °C, the applicants consider that the contribution of the States to this excess is significant, so the measures taken by the latter to reduce it must be presumed to be inadequate until proven otherwise.

The absence of adequate measures to limit global emissions constitutes, in itself, according to the applicants, a violation of the obligations incumbent on States.

The claimants consider that the States share the alleged responsibility for climate change and that the uncertainty as to the “equitable sharing” of this contribution between the Member States can only work in favour of the claimants.

They underline the absolute urgency to act in favour of the climate and consider that it is urgent in this context that the Court recognizes the shared responsibility of States and absolves the applicants of the obligation to exhaust local remedies in each State. member. Faced with the inaction of the Governments, the Court should take up the defence of the applicants and protect them from the threats hanging over them as a result of climate change. Such an approach would meet the urgency to act to meet the 1.5oC target and at the same time increase the likelihood of an effective response from national jurisdictions. In this regard, the claimants argue that legal actions have already been taken by third parties in the several Member States due to the failure to comply with binding obligations to reduce global emissions. Some of these actions have been successful, others have not, and others are still pending before national courts. However, in a particularly complex case such as this, requiring the applicants, who come from low-income families and live in Portugal, to exhaust all remedies before the national courts of each respondent State, would be tantamount to imposing an excessive and disproportionate burden on them, while an effective response from the courts of all Member States appears necessary since national courts can only issue injunctions against their own States.

The case is still pending and this is one of the greatest threats to the potential success of this application. As a general rule, all national judicial remedies must be exhausted for an application in Strasbourg to be admissible in the first place. The European Court of Human Rights has allowed for exceptions to this rule only in extreme cases when it was obvious that the national courts would deny justice. The applicants do have a point here and while I am personally sympathetic to this approach, it remains to be seen whether Strasbourg will accept this line of reasoning.

However, there is cause for very careful optimism because the importance of the case has been recognized as the European Court of Human Rights has decided to reallocate responsibility for a pending case that promises to be highly relevant from the perspective of climate justice from the Chamber to the Grand Chamber. This already indicates that the Court has understood the importance of the issues that are at stake here and the Duarte Agostinho case has the potential to become a landmark case on climate justice and human rights.

Climate justice is an emerging field of law that stretches across international law and national legal systems and that is quickly gaining practical importance as well as attention from politicians, academics, and diplomats. International efforts to combat climate change have been underway for decades and large events such as the Conferences of Parties (COPs) to the United Nations Framework Convention on Climate Change (UNFCCC) gain large degrees of public attention. In the last few years, the debate on climate justice has shifted and today climate justice is inextricably linked to human rights.

Regardless of the out upcoming judgment of the European Court of Human Rights, this decision will influence the debate on climate justice and human rights in Europe and beyond. The European Convention on Human Rights applies from Greenland to Sápmi (although, not in Svalbard). All states that are parties to the European Convention on Human Rights are obliged to implement it as it is being interpreted by the European Court of Human Rights. This means that any decision in Duarte will also have direct implications for the European Arctic, also because Denmark, Norway, Sweden, and Finland, all are parties to this particular case. But the effect will not end there. The European Court of Human Rights is among the world’s leading judicial institutions working on matters of human rights. As such, it provides inspiration for debates on human rights questions elsewhere, in Europe and beyond.

This text is based on an earlier text that was published here a few months ago. It has been updated and amended in preparation for a conference on climate change and human rights in Rovaniemi, Finland, on 26 October 2022.