In his dissenting opinion in Klimaseniorinnen, Judge Eicke argues that the majority has gone “well beyond … the permissible limits of evolutive interpretation” in finding a violation of Article 8 [3]. In his view the majority took three innovative steps: (i) expanding the concept of victim status/standing to allow NGOs to have standing even where their members would not have victim-status if taken individually; (ii) creating a “new” right to protection from the effects of climate change; and (iii) imposing a new duty on states to adopt measures to mitigate those effects. For Judge Eicke, none of these three innovations had “any basis in Article 8 or any other provision of or Protocol to the Convention” [4]. Indeed, it is not just the critics of the majority’s judgment who think it innovative – counsel for the applicants labelled it “ground-breaking”. Moreover, the Court itself said that although its existing environmental jurisprudence could “offer guidance up to a point” [414], climate change cases had special features which justified the adoption of a “tailored approach” which would draw “some inspiration” from the existing case law but would not ‘directly transpose’ that case law to the context of climate change [422].
In this post, I argue that the Court’s expansion of the concept of victim status/standing was highly innovative and involves a major departure from the Court’s existing jurisprudence. However, I argue that the supposedly “new” right and duty created by the Court represent entirely orthodox, modest, incremental developments of the Court’s well-established jurisprudence on environmental positive obligations.
The Innovative: Victim Status/Standing for Associations
Regarding individual applicants, the Court applied its existing case law in a relatively orthodox manner. Under that case law, in order to engage Article 8, harms must: reach a certain minimum threshold of severity (see Fadeyeva, 69; and Fägerskiöld), pass a ‘comparative’ test (see Galev; and Kozul, 36), directly and specifically affect the applicant (see Asselbourg Luginbühl; Kyrtatos, 52-53; and Çiçek, 32), and be temporally proximate (see Ivan Atanasov, 66). Though the Court did not set out all of these tests in a methodical fashion in its summary of the case law in Klimaseniorinnen [460-472 and 514-520] it did, in effect, endorse their substance – holding that for an individual applicant to have victim status they must be “personally and directly affected by the impugned failures” and must be “subject to a high intensity of exposure” [487], and that “the actuality/remoteness and/or probability of the adverse effects of climate change in time, the specific impact on the applicant’s life, health or well-being, the magnitude and duration of the harmful effects, [and] the scope of the risk (localised or general)” would all be relevant factors [488]. Applying these tests to find that the individual applicants had not been exposed to risk of harmful effects with a sufficient “degree of intensity” to engage Article 8, the Court reached the orthodox conclusion that the applicants did not fulfil the victim-status criteria [533-535].
However, with respect to the standing of associations, the Court’s judgment is anything but orthodox. The key innovation is not that associations may have standing in climate change cases, but that they may have standing even if those whom they represent do not meet the strict victim-status criteria set for individual applicants. Moreover, the Court set an extremely low bar for such standing, simply requiring associations to: (i) be lawfully established in their jurisdiction, (ii) be set up to pursue aims including the defence of the human rights of their members from the threat of climate change, and (iii) show that they represent “affected individuals … who are subject to specific threats or adverse effects of climate change on their lives, health or well-being” [502].
While it is arguable that this innovation is normatively justifiable on the grounds of the special features of climate change [489] and the “evolution in contemporary society as regards recognition of the importance of associations” [497], what is clear is that it has little to no basis in the Court’s existing jurisprudence. This is evident from the fact that the Court hardly tried to ground this innovation in its existing jurisprudence, noting in its judgment only a small handful of cases where a degree of flexibility in standing had been accorded in the past to associations [476, 477, 489, and 498]. In none of the cases cited did the Court go anything like as far as it has done in Klimaseniorinnen. As the dissenting opinion notes, it is only where there are “highly exceptional circumstances”, such that it would be “impossible” for an applicant effectively to protect their Convention rights, that exceptions to the ordinary victim-status rules have previously been made for associations [37-42]. Indeed, it is telling that although many academic commentators had argued for various incremental innovations in the rules on victim-status for climate change cases (e.g. here, here, and here), none had argued for the radical innovation which the Court has ultimately adopted.
Moreover, although the Court emphasised the “need to ensure … that the criteria for victim status do not slip into de facto admission of actio popularis” [484], Judge Eicke is surely right that the majority has “created exactly what the judgment repeatedly asserts it wishes to avoid, namely a basis for actio popularis type complaints” [45]. While the Court purports to be respecting the actio popularis rule by making associational standing “subject to certain conditions” [500], this rings hollow when one examines the content of those conditions and how low the bar has in fact been set to establish such standing. The reality is that the Court has, for better or worse, created a ‘loophole’ for associations in climate change cases allowing them to bypass all ordinary rules on victim-status.
The Orthodox: ‘New’ Rights and Duties?
The core of the positive obligations the Court has imposed on states are set out in paragraph 550 of its judgment. They are duties to:
In this post, I argue that the Court’s expansion of the concept of victim status/standing was highly innovative and involves a major departure from the Court’s existing jurisprudence. However, I argue that the supposedly “new” right and duty created by the Court represent entirely orthodox, modest, incremental developments of the Court’s well-established jurisprudence on environmental positive obligations.
The Innovative: Victim Status/Standing for Associations
Regarding individual applicants, the Court applied its existing case law in a relatively orthodox manner. Under that case law, in order to engage Article 8, harms must: reach a certain minimum threshold of severity (see Fadeyeva, 69; and Fägerskiöld), pass a ‘comparative’ test (see Galev; and Kozul, 36), directly and specifically affect the applicant (see Asselbourg Luginbühl; Kyrtatos, 52-53; and Çiçek, 32), and be temporally proximate (see Ivan Atanasov, 66). Though the Court did not set out all of these tests in a methodical fashion in its summary of the case law in Klimaseniorinnen [460-472 and 514-520] it did, in effect, endorse their substance – holding that for an individual applicant to have victim status they must be “personally and directly affected by the impugned failures” and must be “subject to a high intensity of exposure” [487], and that “the actuality/remoteness and/or probability of the adverse effects of climate change in time, the specific impact on the applicant’s life, health or well-being, the magnitude and duration of the harmful effects, [and] the scope of the risk (localised or general)” would all be relevant factors [488]. Applying these tests to find that the individual applicants had not been exposed to risk of harmful effects with a sufficient “degree of intensity” to engage Article 8, the Court reached the orthodox conclusion that the applicants did not fulfil the victim-status criteria [533-535].
However, with respect to the standing of associations, the Court’s judgment is anything but orthodox. The key innovation is not that associations may have standing in climate change cases, but that they may have standing even if those whom they represent do not meet the strict victim-status criteria set for individual applicants. Moreover, the Court set an extremely low bar for such standing, simply requiring associations to: (i) be lawfully established in their jurisdiction, (ii) be set up to pursue aims including the defence of the human rights of their members from the threat of climate change, and (iii) show that they represent “affected individuals … who are subject to specific threats or adverse effects of climate change on their lives, health or well-being” [502].
While it is arguable that this innovation is normatively justifiable on the grounds of the special features of climate change [489] and the “evolution in contemporary society as regards recognition of the importance of associations” [497], what is clear is that it has little to no basis in the Court’s existing jurisprudence. This is evident from the fact that the Court hardly tried to ground this innovation in its existing jurisprudence, noting in its judgment only a small handful of cases where a degree of flexibility in standing had been accorded in the past to associations [476, 477, 489, and 498]. In none of the cases cited did the Court go anything like as far as it has done in Klimaseniorinnen. As the dissenting opinion notes, it is only where there are “highly exceptional circumstances”, such that it would be “impossible” for an applicant effectively to protect their Convention rights, that exceptions to the ordinary victim-status rules have previously been made for associations [37-42]. Indeed, it is telling that although many academic commentators had argued for various incremental innovations in the rules on victim-status for climate change cases (e.g. here, here, and here), none had argued for the radical innovation which the Court has ultimately adopted.
Moreover, although the Court emphasised the “need to ensure … that the criteria for victim status do not slip into de facto admission of actio popularis” [484], Judge Eicke is surely right that the majority has “created exactly what the judgment repeatedly asserts it wishes to avoid, namely a basis for actio popularis type complaints” [45]. While the Court purports to be respecting the actio popularis rule by making associational standing “subject to certain conditions” [500], this rings hollow when one examines the content of those conditions and how low the bar has in fact been set to establish such standing. The reality is that the Court has, for better or worse, created a ‘loophole’ for associations in climate change cases allowing them to bypass all ordinary rules on victim-status.
The Orthodox: ‘New’ Rights and Duties?
The core of the positive obligations the Court has imposed on states are set out in paragraph 550 of its judgment. They are duties to:
“(a) adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments;
(b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;
(c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see subparagraphs (a)-(b) above);
(d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and
(e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.”
The most onerous duty placed on states is, in essence, one to adopt a regulatory framework for climate change mitigation and to enforce that framework in good faith. While states must do something to mitigate climate change, they retain a wide margin of appreciation with respect to “their choice of means, including operational choices and policies adopted in order to meet internationally anchored targets and commitments in the light of priorities and resources” [543]. Crucially, although the Paris Agreement targets “must inform the formulation of domestic policies”, those targets are not enforced by the Court, and the Court specifies no “minimum fair share” of greenhouse gas emission reductions which are required. Each Contracting Party retains its discretion “to define its own adequate pathway for reaching carbon neutrality, depending on the sources and levels of emissions and all other relevant factors within its jurisdiction” [547]. The Court does not, therefore, go nearly as far as the Dutch courts went in Urgenda or as far as many academic commentators would have liked (e.g. here, here, and here).
None of this will be particularly surprising to those who have followed Court’s environmental jurisprudence in recent years. First, the Court has on many occasions articulated the basic substantive requirements which must be met by environmental regulatory frameworks (as Ole Pedersen terms them, the “Tǎtar minimum requirements”). Repeatedly, the Court has found violations of the Convention in cases where states lack an environmental regulatory framework, or where the framework they have lacks some crucial aspect (e.g. in Jugheli, 75-77; Budayeva, 20-25 and 148-155; Cevrioğlu, 66-69; Kolyadenko, 185). The duties imposed by the Court in paragraphs 550(a), (b), (d) and (e) do nothing more than to give effect to the Tǎtar minimum requirements to “take regulatory measures as appropriate, which measures must be geared to the special features of the activity in question, with particular regard to the level of the potential risk to human lives involved” and to ensure that those “regulatory measures … govern the licensing, setting up, operation, security and supervision of the activity and … make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks”.
Second, it was predictable that the Court would avoid making any strict prescriptions about the mitigation targets states should set. In its existing environmental jurisprudence, obligations are restricted to ensuring that a state has developed “an adequate policy” (Dubsetska, 143), that it has taken “reasonable and adequate steps to protect the right” (Di Sarno, 110) and that it has avoided “manifest error” in its approach to balancing (Fadeyeva, 128). The Court’s approach in environmental cases has repeatedly shown that where such a policy is in place it will be slow to intervene on substantive grounds. Indeed, this has led commentators to bemoan the Court’s “low-bar balancing approach”. Although the Court in Klimaseniorinnen does suggest targets ought to be set “with a view to reaching net neutrality within, in principle, the next three decades” [548], the words “in principle” – when taken together with the wide margin of appreciation accorded to states and with other qualifying statements made in the judgment – imply that the Court is not deviating from its standard, low-bar balancing approach here.
Third, perhaps the most novel part of the substantive positive obligation imposed is the duty in paragraph 550(c) for states to enforce whatever framework they do adopt. However, even this duty does have a substantial pedigree in the Court’s existing environmental jurisprudence. As the Court stated in Fadeyeva, “in all previous cases in which environmental questions gave rise to violations of the Convention, the violation was predicated on a failure by the national authorities to comply with some aspect of the domestic legal regime” [97]. And as Chris Hilson has observed, ‘domestic irregularity’ has very frequently featured as a core theme in environmental cases where the Court finds a violation of the Convention.
Conclusion
Judge Eicke opines that the majority has “tried to run before it could walk” [68]. At least from the perspective of a lawyer trained in the tradition of the common law, he is right that the Court’s conclusions on the standing of associations are strikingly novel. However, his position that the Court has created ‘new’ substantive rights and duties seems untenable when one examines their true pedigree in the Court’s existing jurisprudence. In light of this, one can see why the majority did not heed Judge Eicke’s plea to declare this case inadmissible on procedural grounds, and to leave the issues raised “for an appropriate future case in which the applicants could show, by reference either to the traditional test or the test identified in the judgment, that they were “directly affected”” [43]. Faced with a situation where the state was clearly acting contrary to rules contained in the Court’s well-established jurisprudence, the Court chose not to let the lack of an appropriate victim get in the way of setting a clear precedent that a failure to mitigate climate change effectively can be a violation of the Convention.
None of this will be particularly surprising to those who have followed Court’s environmental jurisprudence in recent years. First, the Court has on many occasions articulated the basic substantive requirements which must be met by environmental regulatory frameworks (as Ole Pedersen terms them, the “Tǎtar minimum requirements”). Repeatedly, the Court has found violations of the Convention in cases where states lack an environmental regulatory framework, or where the framework they have lacks some crucial aspect (e.g. in Jugheli, 75-77; Budayeva, 20-25 and 148-155; Cevrioğlu, 66-69; Kolyadenko, 185). The duties imposed by the Court in paragraphs 550(a), (b), (d) and (e) do nothing more than to give effect to the Tǎtar minimum requirements to “take regulatory measures as appropriate, which measures must be geared to the special features of the activity in question, with particular regard to the level of the potential risk to human lives involved” and to ensure that those “regulatory measures … govern the licensing, setting up, operation, security and supervision of the activity and … make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks”.
Second, it was predictable that the Court would avoid making any strict prescriptions about the mitigation targets states should set. In its existing environmental jurisprudence, obligations are restricted to ensuring that a state has developed “an adequate policy” (Dubsetska, 143), that it has taken “reasonable and adequate steps to protect the right” (Di Sarno, 110) and that it has avoided “manifest error” in its approach to balancing (Fadeyeva, 128). The Court’s approach in environmental cases has repeatedly shown that where such a policy is in place it will be slow to intervene on substantive grounds. Indeed, this has led commentators to bemoan the Court’s “low-bar balancing approach”. Although the Court in Klimaseniorinnen does suggest targets ought to be set “with a view to reaching net neutrality within, in principle, the next three decades” [548], the words “in principle” – when taken together with the wide margin of appreciation accorded to states and with other qualifying statements made in the judgment – imply that the Court is not deviating from its standard, low-bar balancing approach here.
Third, perhaps the most novel part of the substantive positive obligation imposed is the duty in paragraph 550(c) for states to enforce whatever framework they do adopt. However, even this duty does have a substantial pedigree in the Court’s existing environmental jurisprudence. As the Court stated in Fadeyeva, “in all previous cases in which environmental questions gave rise to violations of the Convention, the violation was predicated on a failure by the national authorities to comply with some aspect of the domestic legal regime” [97]. And as Chris Hilson has observed, ‘domestic irregularity’ has very frequently featured as a core theme in environmental cases where the Court finds a violation of the Convention.
Conclusion
Judge Eicke opines that the majority has “tried to run before it could walk” [68]. At least from the perspective of a lawyer trained in the tradition of the common law, he is right that the Court’s conclusions on the standing of associations are strikingly novel. However, his position that the Court has created ‘new’ substantive rights and duties seems untenable when one examines their true pedigree in the Court’s existing jurisprudence. In light of this, one can see why the majority did not heed Judge Eicke’s plea to declare this case inadmissible on procedural grounds, and to leave the issues raised “for an appropriate future case in which the applicants could show, by reference either to the traditional test or the test identified in the judgment, that they were “directly affected”” [43]. Faced with a situation where the state was clearly acting contrary to rules contained in the Court’s well-established jurisprudence, the Court chose not to let the lack of an appropriate victim get in the way of setting a clear precedent that a failure to mitigate climate change effectively can be a violation of the Convention.