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Did the Court in Klimaseniorinnen create an actio popularis?

Hoca

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Perhaps the thorniest issue that the European Court had to address in Klimaseniorinnen was how to square the prohibition on actio popularis with the granting of standing to the applicant association, but not to the individual applicants. How can the four individual applicants lack victim status, as the Court held, yet the association, of which the applicants were members, had standing and won the case on the merits? The association, the Court held, was not pursuing a complaint regarding its own rights, but was simply representing individuals whose interests are affected by climate change. The Court’s approach, on its face, appears paradoxical. If there was a violation of article 8 ECHR, as the Court accepted, then who is the victim? If the victims included the members of the association, on whose behalf the association brought the claim, then why do they lack victim status?

The result would not, of course, be paradoxical if the Court had openly abandoned the prohibition on actio popularis and accepted that it is creating a ‘public interest litigation’ exemption to the right of individual application under article 34 ECHR. This is how some commentators have interpreted the judgment in previous posts on this blog. Such exemption would give associations standing to pursue legal action in the public interest, rather than represent individuals who are victims. Crucially, associations would have standing under such exemption, regardless of whether any individual, including their members, have victim status. Yet this is not what the Court said it is doing, since it sought to uphold the prohibition on actio popularis. In his dissent, Judge Tim Eicke raised precisely this point. He argued that the majority “created exactly what the judgment repeatedly asserts it wishes to avoid, namely a basis for actio popularis type complaints”.

The normative tension in the Court’s reasoning has sparked familiar debates about judicial activism. In this blog post, I aim to provide a defence of the Court against these criticisms. I think that the way the Court sought to justify its approach is based on a confusion about the prohibition on actio popularis. Nevertheless, I think that an interpretation based on the rights of future generations, which featured prominently in the judgment, provides a stronger justification for the outcome in this case.

A misunderstanding about Actio Popularis

There is wide consensus that at the heart of the Convention system lies a concern for individual justice. Individuals have direct access to the Court and can receive compensation and other forms of redress for violation of their Convention rights. The Strasbourg Court lacks powers of certiorari, i.e., powers to pick and choose cases on the basis of whether they raise important or new legal issues. The logic of the Convention system is that it should be possible for every victim to access the Court and receive compensation. And it is uncontroversial that a very large number of individuals may be victims of an ECHR violation in virtue of the same act, or omission by a state. For example, in article 6 ECHR cases to do with length of proceedings (see e.g., Rumpf v Germany), where the number of victims is very high, the issue has been dealt with by the Court under the mechanism of a pilot-judgment. It is moreover conceivable that a legislative act may directly affect millions, or even the entire population within its jurisdiction. In the case of Modinos v Cyprus, the Court held that the very existence of legislation criminalising homosexual conduct was sufficient for the applicant to be considered a victim. This was even though the criminal prohibition was not enforced against the victim. We can only speculate about how many other people in the country were affected by this legislation and hence qualified as victims. Though their number was indefinite, this was no obstacle to admissibility. Indeed, imagine that a state criminalised the expression of all political speech and threatened to enforce the prohibition. Virtually all individuals in this hypothetical would qualify as victims under the Convention and all would be symmetrically affected.

So, it cannot be a necessary condition of admissibility under the Convention that the individual victim must be affected differently from others. This is often used as a distinguishing feature of when a lawsuit is not an actio popularis; but is merely a proxy. The criteria for victim status are non-comparative; one can be directly affected by an act, even if one is affected in the same way compared to the general population. Victims, moreover, can be indefinite in the sense that we cannot know their identity or their number, as was the case with those affected by the prohibition of homosexual conduct in Modinos. Nor is it a condition of admissibility that a case will not open the ‘floodgates’ of litigation. This is a utilitarian argument familiar from domestic law. The floodgates argument is based on a logic, foreign to the Convention system, that if it is very costly to hear the applications of all victims, then those victims should be deemed not to have a legal right. What matters, instead, under the Convention is whether one’s rights have been affected in a legally relevant way.

We should therefore be puzzled by the Court’s statement in paragraph 483:​

While it is true that in the context of general situations/measures, the class of persons who could claim to be victim status “may indeed be very broad”, it would not sit well with the exclusion of actio popularis from the Convention mechanism and the effective functioning of the right to individual application to accept the existence of victim status in the climate-change context without sufficient and careful examination.​

The Court here seems to conflate two separate questions. The first is whether climate change may directly affect the Convention rights of an indefinite number of people, and potentially everyone, in a legally relevant way. The second is whether one can bring a complaint about climate change in the public interest, rather than on behalf of a victim of a Convention right. If the answer to the first question is positive, then no issue arises under the second question, and hence no violation of the prohibition of actio popularis, even if the number is very high.

That the Court interpreted the prohibition on actio popularis as a pragmatic concern about floodgates is even clearer in para 484 where it said that if the circle of victims is drawn too widely, this would “risk disrupting national constitutional principles and the separation of powers by opening broad access to the judicial branch as a means of prompting changes in general policies regarding climate change”. But this is a non-sequitur because no disruption to separation of powers occurs when a large number of individuals are in fact victims of a Convention right. No such disruption occurred in length-of-proceedings cases, or in cases like Modinos v Cyprus. In sum, if the Court’s reason for denying the four applicants victim status, and for granting standing to the association, was a utilitarian concern with floodgates, and a worry about an indefinite number of victims, then it was the wrong kind of reason. A claim is an actio popularis only when it is brought solely in the public interest, and not by (or on behalf of) a victim of a rights violation.

Associations acting on behalf of future generations

As previous commentators have noted, however, it is not clear that the Convention rights of the four women applicants, and of thousands of other persons in Switzerland who are similarly situated, were victims under the Convention criteria. If this is correct, it poses a dilemma. Either the association brought the claim on behalf of its members, in which case it should not have been granted standing, given that the four women were found to lack victim status; or, alternatively, the association brought the claim solely in the public interest, in which case the Court allowed an actio popularis, in contravention of article 34 ECHR. The first option commits the Court to an inconsistency, whereas the second option constitutes a case of judicial activism. I want to highlight here a third option, however, that might avoid these problems: the association represented the Convention rights of future generations, who currently count as victims, but are unable to bring a complaint. Could this interpretation find any ground in the Court’s case law and the logic of the Convention system?

As Judge Eicke noted in his dissent, only in ‘highly exceptional circumstances’ has the Court accepted that a) an applicant can be a victim of a risk materialising in the future and that b) an association has standing to represent victims without their authorisation. In exploring these exceptions under the heading of ‘potential victim’, the Court was quick to find that they were not applicable in the case of climate change (para 485). But the reason the Court gave there was again based on a misconception of actio popularis. It said that “in the context of climate change, this could cover virtually anybody and would therefore not work as a limiting criterion”. As argued already, however, the fact that an interpretation will result in an indefinite number of individuals counting as victims, is not in itself a reason to reject it. Besides, a focus on the rights of future generations, as opposed to the living population, does provide a limiting criterion: it helps to distinguish between individuals who, at the moment, are not affected by climate change at a very high threshold of severity, and those who will certainly be so affected in the future, if no state action to combat climate change is taken.

A careful reading of the Court’s judgment reveals the key role that the rights of future generations play in it, as argued previously by Aoife Nolan. We can reconstruct the Court’s argument as follows:

Premise 1: Future generations are likely to bear an increasingly severe burden of the consequences of present failures and omissions to combat climate change (para 421)

Premise 2: This inevitably calls for intergenerational burden-sharing (para 420).

Premise 3: There is a risk that short-term interests and concerns may come to prevail over, and at the expense of, pressing needs for sustainable policy-making. (para 421)

Premise 4: Future generations, who stand to be most affected by the impact of climate change, can be said to be at a representational disadvantage (para 484)

Conclusion: Collective action through associations or other interest groups may be one of the only means through which the voice of those at a distinct representational disadvantage can be heard (paras 489 and 616).

It is hard to doubt the cogency of this argument. Future generations are not represented in current legislative decision-making. This absence of representation allowed, for example, the concerns of Swiss people about the possible rise of petrol prices to prevail in the referendum of 2021, and to block the passing of the CO2 Act. The argument also ties in well with the Court’s case law that has afforded strong protection to under-represented or unrepresented minority groups, such as prisoners (Hirst v UK), children (Marckx v Belgium), and immigrants (Chowdury v Greece).

Is there a doctrinal obstacle to viewing future generations as ‘potential victims’ under the Convention? The Court’s existing case law supports this interpretation. We know from cases like Norris and Soering that individuals count as victims even though the risk of enforcing legislation, or the risk of being subjected to the ill-treatment if extradited, has not materialised yet. It is the present risk that makes them victims under the Convention system. To be sure, there are conditions: there must be evidence of a high degree of probability, the risk of harm must be direct and the consequences not too remote. But all these conditions appear to be met in the case of climate change: the scientific evidence is unquestionable that unless action is taken, future generations will suffer severe harm directly and with certainty. Though the harm is remote in terms of time, it is not in terms of causation.

Is the fact that future generations do not exist yet, and cannot come before the Court, an obstacle? The Court already examines applications about individuals who do not exist, because they have died. In fact, these are precisely the cases where the Court has allowed associations to bring a complaint on behalf of the victim without their authorisation, as in the case of Centre for Legal Resources on behalf of Valentin Campeanu v Romania. And it is not clear that anything relevant hangs on the distinction between the rights of a dead person and the rights of a future person. In any case, today’s newborn babies may already face the risk of much more severe harm materialising in their lifetime due to climate change, than current adults. These babies may already have victim status under the Convention because the present risk of harm to them has reached a very high level of severity. And, just like deceased persons, they cannot bring an application before the Court. But their relatives can. The same logic that would grant standing to the relatives of these babies, would also grant standing to associations to bring a complaint on behalf of the babies whose relatives are unable to do so. And it is a small step from that proposition to allowing associations to bring claims on behalf of future generations. The general principle is that associations can have standing before the Court on behalf of actual victims who are unable to bring a claim, yet it is important that the Court examines whether there has been a violation.

This interpretation avoids the initial paradox. If we accept that future generations, or even today’s young babies, are victims, then we can explain both why associations have standing to bring claims on their behalf and why the four individual applicants did not have victim status (even though there was an ECHR violation). Klimaseniorinnen can be then seen as having brought a claim not in the public interest, or on behalf of its members, but on behalf of victims (future generations) who are unable to do so.

This may appear to some as ‘public interest litigation’ by another name. But it is not, if by ‘public interest’ we mean the interests of most people currently living, which would include for example the public’s interest that the cost of living does not increase substantially because of measures to combat climate change. On the contrary, the whole point is that the public interest is trumped by the rights of future generations and that the imperative to reduce emissions should take precedence over public interest. Far from judicial activism, the Court’s approach to standing in this case respects the principle of individual justice enshrined in article 34 of the Convention.​
 
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