Potential groundbreaking case paves the way

The Global Legal Action Network (‘GLAN’) plan to bring a potentially ground-breaking climate change civil case to the European Court of Human Rights (ECtHR). Suing all 47 States of the Council of Europe, GLAN is acting behalf of six Portuguese children adversely affected by forest fires. In June of this year their district burned as a result of the worst forest fires in their country’s history. The fires, which have been linked to climate change, claimed the lives of over 60 people.

This case is potentially groundbreaking in a number of respects. If it succeeds in passing the first hurdle – a preliminary ruling allowing it to proceed on the basis of exceptional circumstances – the core issues come down to causation, adverse impact and collective responsibility.

Currently there is no overriding mandatory duty of care to prevent serious harm, or to pre-empt it. States have yet to be found accountable for some of the biggest impacts caused by acts or omissions. This case paves the way for recognition of missing ecocide law where persons of senior State responsibility can be personally held to account.

The objective is to secure on behalf of these applicants a ruling that the States party to the European Convention on Human Rights (ECHR): (a) must significantly strengthen their emissions cutting policies, and (b) must commit to keeping most of their existing fossil fuel reserves in the ground, in order to minimise the threats posed to their welfare by climate change in the future.

The Relevant Principles of ECHR Law

The ECHR imposes a positive obligation on States to take “reasonably available measures” to prevent interferences with human rights, or to mitigate those interferences where it is not possible to prevent them completely. A range of human rights of people alive in Europe today are threatened by climate change, including what many see as the most fundamental, the right to life (Article 2).

GLAN assert that the ECHR imposes obligations in relation to climate change which are far more onerous than those contained in the Paris Agreement. The latter, while setting an ambitious collective goal of keeping global warming to well below 2°C, imposes no meaningful obligations on States to implement measures consistent with achieving that goal. The case law of the ECtHR, however, emphasises that the measures which States adopt to protect human rights must be effective.

Now, this is where it gets interesting, if you’ve got this far –

In terms of procedure, the general rule under the Convention is that an applicant must ‘exhaust domestic remedies’ (i.e. take a case through the domestic courts) before taking a case to the ECHR. An exception exists where the remedies in question are not practically available. GLAN’s case will argue that it would not be practically possible for a group of applicants to launch climate change cases in the domestic courts of all of the 47 States party to the Convention and that this therefore justifies the application of the exception to the rule. In other words, it is the ambitious scale of this case which allows to take a case directly to the ECtHR.

The scale of the case also helps in proving ‘causation‘ i.e. that the inadequacy of the measures taken (or not taken) by States in relation to climate change can be causally linked to threats it poses. While this is a difficult argument to establish where only one State is concerned, that is not the case when dealing with 47, who collectively are responsible for approximately one-fifth of global greenhouse gas emissions.

Evidence will cover a range of issues including the impact which climate change is projected to have in Europe this century, the reserves of fossil fuels held by each Convention State and the emissions cuts projected to result from their existing policies and commitments.

From third tier to second tier governance

As noted, the 47 States that have ratified the ECHR are collectively responsible for nearly one fifth of global greenhouse gas emissions. They also hold a similar proportion of the world’s known fossil fuel reserves. Decisions of the European Court of Human Rights are, therefore, binding on these States so a decision of the kind they are seeking would clearly be of major significance. Legally-speaking, were such a decision to be handed down, it would be as if the 47 States party to the ECHR had entered into a climate change treaty with far greater ‘bite’ than the Paris Agreement. If this case succeeds, the outcome shall shift governance up the governance pyramid, from soft law to the civil law level, paving the way for the top level; criminal law. The second tier of governance can provide remedy for climate and ecosystem destruction, but this is primarily only by way of imposing fines. You can read more about how the governance pyramid operates here.