First hearings in climate change cases before the European Court of Human Rights:
tackling the victim status
By Celine Lange
Published on 28 March 2023
In February 2023, the European Court of Human Rights (the ECHR or the Court) issued an update on the ‘status of climate applications’ pending before it. It had shortly before announced that the first public hearings in two of these cases would be held on 29 March 2023: Verein KlimaSeniorinnen Schweiz and others v. Switzerland (Verein) and Carême v. France (Carême). The hearings in the two cases will be held before the same composition of the Grand Chamber and, unusually, on the same day. As of March 2023, nine climate cases are pending before the ECHR and two applications were declared inadmissible in December 2022. The Climate litigation database lists an additional case concerned with freedom of expression, about which no ECHR public information is available.
The March 29th hearings are highly anticipated, as party submissions will for the first time be publicly made in ECHR climate cases, even if the Court’s rulings will take several months to be delivered. The possibility and desirability of climate litigation at the ECHR have also triggered a debate among scholars (see here, here, here and here). Beyond these engaging discussions, these applications are, as a matter of fact, now before the ECHR and they will therefore be decided by the Court. Whatever the Court’s decision—even one of inadmissibility—it will carry significant weight.
This blogpost takes a closer look at the Verein and Carême climate cases pending hearings before the ECHR on March 29th, with emphasis on the questions posed as to the victim status of the applicants. How this question is answered will be crucial for the Court’s future rulings in climate cases.
The first “framework” climate cases before the ECHR
The ECHR has been dealing with hundreds of ‘environmental cases’ as early as the 1990s and measures were adopted by States as a result of violations of the European Convention on Human Rights (the Convention) that the ECHR found in these cases. But Duarte Agostinho and Others v. Portugal and Others (2020), brought by six Portuguese nationals aged between 10 and 23, was the first ‘climate change case’ lodged before the Court. The number of respondent States (33), the unprecedented nature of the allegations and the large number of third-party interveners probably explain why the Duarte Agostinho application was only relinquished in favour of the Grand Chamber in June 2022, despite the fact that the case was granted priority under Rule 41 of the Rules of the Court (similarly to Verein). The public hearing in this case, the Court announced, will be held ‘soon after the 2023 summer judicial recess’.
In several of these cases, the Court is for the first time called upon to rule on the issue of State climate-change action. Climate litigants worldwide are increasingly bringing such ‘framework cases’ against governments, concerning ‘the design and overall ambition of a government’s response to climate change and/or the adequacy of the implementation of a policy response’. Applicants before the ECHR indeed explicitly invoke States’ undertakings under the Paris Agreement to argue that governments have fallen below their obligations, which causes them to suffer violations of their Convention rights.
The ECHR has, however, consistently held that ‘the Court’s task is not normally to review the relevant law and practice in the abstract, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention’. Under Articles 34 and 35 of the Convention, applicants must show that they are ‘victims’, i.e. that they have, personally and directly suffered a significant disadvantage. As a matter of fact, in December 2022, the Court declared inadmissible for lack of victim status two climate cases against the United Kingdom. While details are not available, the fact that Plan B. Earth and Others was examined by the Court in a formation of three-judge Committee indicates that the case was already covered by well-established victim status ECHR case-law. As for Humane Being and Others, it was a case of manifest inadmissibility (examined by the Court in a single judge formation). Since Carême and Verein were relinquished in favour of the Grand Chamber, it can safely be presumed that they raise different questions with respect to the victim status issue than these two cases.
The victim status question
A- Carême: victim of government’s climate inaction?
In 2019, Mr Carême, together with the municipality of which he is the former mayor, lodged an application with the French Conseil d’Etat, alleging that French authorities had failed to take all appropriate measures to comply with their Paris Agreement objective. The Conseil d’Etat found in 2020 that Mr Carême did not have an interest to act but that his co-applicant, i.e. the municipality, had such an interest as it was particularly exposed to environmental risks. Thus, the case went on with the municipality as applicant. Before the Conseil d’Etat could render its decision on the submissions it had asked from the government in its 2020 decision, Mr Carême lodged his application before the ECHR on 28 January 2021. In it, he submitted the same claims as before the Conseil d’Etat, adding that French authorities had a positive obligation under Article 2 (right to life) of the Convention to take protection measures in relation to environmental hazards. He further complained that, by dismissing his individual action as a resident of the municipality, the Conseil d’Etat had disregarded his ‘right to a normal private and family life’, including the peaceful enjoyment of his home, under Article 8 of the Convention. Further to France’s submissions pursuant to the 2020 decision, the Conseil d’Etat in a decision dated 1 July 2021 in the municipality’s case, ordered the French government to take, by 31 March 2022, additional measures in order to meet its Paris objectives. This decision was compared by some commentators to the ruling of the Netherlands’ Supreme Court in the Urgenda case.
One of the questions raised by Mr Carême’s case is whether his claims as to the insufficiency of the government’s action can be considered to have been addressed by the Conseil d’Etat’s order to the French authorities in its 2021 decision, which could weigh on the Court’s analysis as to Mr Carême’s victim status. In this regard, will the Court choose to defer to the Conseil d’Etat for the review of the new measures announced by the French government in May 2022? Another question is how the ECHR will deal with the applicant’s claim that he is the victim of a violation of his ‘right to a normal private and daily life’, which is a departure from the ‘right to respect for private and family life’ protected under Article 8.
B- Verein: Swiss courts’ interpretation of the victim status under the Convention
The Verein case was lodged by an NGO and four women aged between 78 and 89, and counts a large number of third-party interveners, including member States. It was communicated in 2021, together with questions to the parties, the first of which being whether the applicants could be considered to be ‘victims’, i.e. whether their health and living conditions have suffered direct or indirect severe consequences due to Switzerland’s alleged inaction in relation to climate protection. This victim status question was precisely the stumbling block for the applicants who complained before the Swiss courts that these alleged failures interfered with their rights under Articles 2 and 8. In a 2020 judgement, the Swiss Federal Court held that the applicants were not sufficiently affected by the alleged failures in terms of their right to life, or their right to respect for private/family life and home, for them to assert an interest worthy of protection within the meaning of the Swiss Federal Law.
It is thus expected that, before the ECHR, the applicants will rely on its case-law on indirect victims, victims ‘to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end’. The Court has also accepted, in very specific situations, the notion of ‘potential victim’ requiring the applicant to produce ‘reasonable and convincing evidence of the likelihood that a violation affecting him or her personally will occur’.
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Conclusion
At a conference on ‘Human Rights and the Planet’ in 2020, the then-President of the Court, Robert Spano, insisted that the Convention guarantees must be effective and real, not illusory, keeping in mind that climate change is damaging the full enjoyment of human rights. He said: ‘To the extent that climate change implicates already existing norms of a binding nature in the field of human rights, amenable to judicial enforcement, it is the province, and duty, of judges to interpret and apply such norms.’
The Court’s reasoning and decision in the Carême and Verein cases will be decisive for the next climate cases the Court will examine. As some of these future cases are more complex, raising, for instance, questions related to extraterritoriality, a clear decision by the Court on the victim status issue has the potential to be a crucial building block for the Court’s case-law on this new matter before it.