The rising trend of bringing climate complaints before courts is at the stage where the ECtHR is facing its first ever application concerning human rights violations due to insufficient climate change mitigation by various States. The complaint of six Portuguese children and young people is now awaiting a decision on its admissibility. It states that 33 European States are violating Articles 2 (the right to life), 8 (the right to respect for private and family life) and 14 (the right to enjoy ECHR rights without discrimination) [Global Legal Action Network, 2020]. A violation of Article 14 refers to the young age of the applicant and the accelerating effects of the climate change that is going to affect their lives and the lives of future generations.
The climate actions of young people brought before the Court indicate an urge for a judicial shift in the interpretation of climate change and States’ obligations in protecting human rights.
The climate actions of young people brought before the Court indicate an urge for a judicial shift in the interpretation of climate change and States’ obligations in protecting human rights by taking sufficient actions to mitigate emissions. The domestic remedies might be seen as inadequate in many States. At the national level, there has been discussion about climate litigation and its challenges. The issue of a separation of powers has been on the table when considering a Court’s authority to determine whether the State should take more serious emission reduction actions.
However, litigation at the national level has already occurred in order to establish a clearer frame for State obligations regarding climate change mitigation. The most groundbreaking national court case was the Urgenda climate case (2019) against the government of the Netherlands, where the Dutch Supreme Court ruled that the government had not taken appropriate actions in climate mitigation and now must reduce emissions in order to fulfil its human rights obligations. The Dutch Supreme Court ruled that there had been a violation of Articles 2 and 8 of the ECHR [Urgenda, 2019].
The Portuguese young people’s application to the ECtHR is not following the traditional path of first exhausting all the domestic remedies and then being appropriate to be brought before the Court. One reason is the impracticality of going through the remedies of all 33 countries. Also, they have also argued that the national remedies are not adequate. [Global Legal Action Network, 2020] The application being very recent, it is yet to be decided whether it is admissible. Whether the application is seen as admissible or not, this judicial remedy trend is taking shape and to be able to respond to the climate emergency, climate litigation needs to be done both in the national and the international courts.
Climate change action needs to be seen not in isolation but as a wider trend where climate change is not outside of national or international courts competences.
It is important to keep in mind that the ECHR was created to be a living instrument shaping itself over time. Nor is it working in a vacuum and its interpretation is related to the development of international law in the field of climate change. The Court has had to decide on important issues in European society and logically climate change follows this continuum. The important thing is to understand that climate change action needs to be seen not in isolation but as a wider trend where climate change is not outside of national or international courts competences. There is a need for action to combat the climate emergency by all branches of government and various international actors. In addition to more effective climate legislation and stricter policies, there is clearly a need for actions through the courts.
Global Legal Action Network. (2020). The Case. Retrieved from: https://youth4climatejustice.org/the-case.html.
Urgenda. (2019). Climate Case Explained. Retrieved from: https://www.urgenda.nl/en/themas/climate-case/climate-case-explained/.