Landmark Climate Change Ruling expected from European Court of Human Rights
Young applicants connect human rights, climate justice, and the rights of future generations in case against 33 states
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. The case Duarte Agostinho and Others v. Portugal and 32 other States that is currently pending at the European Court of Human Rights has the potential to become a landmark case on climate justice and human rights.
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 (ECHR) also includes a right to live in a healthy environment. Obligations under the ECHR also include positive obligations. The applicants in Duarte Agostinho and Others claim that inaction on the part of states is violating their 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. This has become visible in a number of decisions by national courts in recent years, for example, a 2019 decision by the Supreme Court of the Netherlands or a 2021 decision by the German Federal Constitutional Court. 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 case concerns the application by a number of young people who, at the time the application was lodged with the European Court of Human Rights in 2020 were between 8 and 21 years of age. The applicants claim that the forest fires, which for the last years have been a regular problem of large proportions in Portugal, are a consequence of human-made climate change. The applicants claim violations of the right to life (Art. 2 ECHR) and the right to private life (Art. 8 ECHR), depending on their individual situations (e.g. applicants living close to the sea seeing their homes as endangered by storms that are more frequent and more severe due to climate change). According to the applicants, the respondent states have failed to honour their positive obligations under the rights in question and that the obligations under Articles 2 and 8 ECHR need to be interpreted in light of the Paris Climate Agreement and Article 3 (1) of the UN Convention on the Rights of the Child. The applicants furthermore complain of discrimination as their generation is particularly affected by climate change, more so than other generations. The case also touches upon intergenerational justice, with the applicants linking the alleged violation of their rights with documents as diverse as the UN Framework Convention on Climate Change and the Rio Declaration on Environment and Development.
This is not the first time that the European Court of Human Rights has had to deal with climate change litigation but this upcoming decision is particularly interesting because the case has just been transferred from a Chamber to the Grand Chamber of the European Court of Human Rights and it now appears even more likely that this will be a landmark decision on climate justice under the European Convention on Human Rights (ECHR) that might serve as an inspiration for other courts as well.
About the author
Prof. Dr. Stefan Kirchner is working at the intersection of international environmental law, human rights, and the law of the sea. In addition to practising law, he has taught international law at universities in Germany, Finland, Italy, Lithuania, Ukraine, and Greenland. His most recent books include “Security and Technology in Arctic Governance” (ed., 2022), “Governing the Crisis: Law, Human Rights and COVID-19” (ed., 2021), “El Ártico y su gente - Ensayos de derecho internacional” (2020), and “The Baltic Sea and the Law of the Sea - Finnish Perspectives” (with T. Koivurova, H. Ringbom and P. Kleemola-Juntunen, 2019). This text only reflects his personal opinion.