FAQ

A series of deadly wildfires in Portugal in 2017, which broke out close to where some of the six youth-Applicants live, prompted them to take action to safeguard their futures. It was then that they connected with the Global Legal Action Network (GLAN) and decided to take a climate case against multiple countries to the European Court of Human Rights (ECtHR). They decided to do so because their physical and mental health is already being harmed by the impacts of climate change and unless countries, including European countries, adopt much steeper greenhouse gas (GHG) emissions reductions urgently, these impacts will worsen dramatically over the course of their lifetimes. Portugal is one of the countries most vulnerable to the impacts of climate change in Europe and it is imperative that global warming is held to 1.5°C, as an absolute upper limit, to ensure that the youth-Applicants have a liveable future.

Together with GLAN, they launched a crowdfund campaign in 2017 and set about building the case. GLAN brought together a team of lawyers and experts and spent two years developing the arguments with them. The case was then filed in September 2020.

The case was originally filed against all 27 of the Member States of the EU plus Norway, Russia, Switzerland, Turkey, the United Kingdom and Ukraine. Taking the EU Member States as a bloc, these countries make up the major emitters of GHGs within Europe. The EU is not a Respondent in the case but has joined as a Third Party Intervener (see FAQ 12). Following the invasion of Ukraine by Russia, the youth-Applicants withdrew their case against Ukraine.

The issues in this case are divided between what are called “admissibility” issues and “merits” issues. Admissibility issues are issues which the ECtHR must decide in favour of the youth-Applicants before it decides the “merits” issues. The three admissibility issues which the ECtHR must decide are:

• Are the youth-Applicants sufficiently affected to make them “victims”? (See FAQ 4)
• Should they have brought their case first to the national courts of the Respondent countries (i.e. should they have “exhausted domestic remedies”)? (See FAQ 7)
• Do the Respondent countries other than Portugal owe “extra-territorial” obligations to the youth-Applicants in relation to climate change? (See FAQ 7)

The “merits” questions are, essentially, do the Respondent countries have obligations to protect the youth-Applicants from climate change and are they complying with those obligations? (See FAQ 8)

The youth-Applicants have already been experiencing significant impacts of climate change, especially as a result of increasing heat extremes. In particular, during recent heatwaves, they have been restricted in their ability to spend time outdoors, exercise, sleep and concentrate properly. Some of them also suffer from health conditions like asthma which is worsened by extreme heat.

The world is currently on course to reach a catastrophic 3°C of global warming within the life-time of the youth-Applicants. According to their expert evidence, this would bring heatwaves to Portugal with temperatures of 40°C lasting for a month or more. Their case therefore also focuses on the future harms and risks of harm that will result from this extreme heat as well as other impacts, such as wildfires, Atlantic storms and the increased presence of infectious disease.

Another important element of their case is the effect on their mental that the climate crisis and government failure to act is having. To demonstrate this, they have presented expert evidence which draws on the recent scientific literature demonstrating that climate anxiety is widespread among young people.

The Applicants argue that they are “victims” (see FAQ 3) based on all of the above points combined.

The Applicants argue that their rights under the following Articles of the European Convention on Human Rights (ECHR) are being violated:

• Their right to life (Article 2);
• The right to be free from torture, inhuman or degrading treatment (Article 3);
• Their right to privacy and family life (Article 8);
• Their right to be free from discrimination on grounds of their age (Article 14).

The youth-Applicants’ original application focused only on Articles 2, 8 and 14. This is because the ECtHR has never found a violation of Article 3 in a case concerning harm to the natural environment (it has found violations of Articles 2 and 8 in numerous cases of this kind). However, in the Court’s first set of questions to the parties, it decided itself to raise a question whether the youth-Applicants’ right under Article 3 was being violated. This is an indication of how seriously the Court is taking the case.

There have been a number of successful climate cases at the national level in Europe. For example, in the Urgenda case, the Dutch Supreme Court ordered the Netherlands to strengthen its 2020 emissions target, based on its obligations under the ECHR. And in the Neubauer case, the German Constitutional Court found that Germany’s climate policies involved shifting too much of the burden of reducing emissions into the future, infringing the rights of younger and future generations. The youth-Applicants point to these cases as demonstrating that courts have a role in holding governments to account for inadequate climate policies.

However, it is a central part of their case that even these cases do not go far enough to protect them. In the Urgenda case, this is because the Dutch Supreme Court ordered the Netherlands to achieve only the “absolute minimum” of its fair share of the emissions reductions required to hold global warming to 2°C. And if every country did this, global warming would significantly overshoot 2°C.

In the Neubauer case, this is because the German Constitutional Court decided that it was lawful for Germany to link its climate policies to 2°C of global warming due to Germany’s lower vulnerability and ability to adapt to climate impacts. It also held that Germany has very limited obligations to people living in more vulnerable countries outside of Germany. The youth-Applicants point to science which shows that the impacts of global warming above 1.5°C in Portugal, as a particularly vulnerable country, would have devastating consequences for their wellbeing and that Portugal is not able to adapt to climate impacts at 2°C of global warming.

It is primarily because national courts have not gone far enough to protect their rights that the youth-Applicants argue that they were not required to bring their case before the national courts of the Respondent countries (see FAQ 7).

The youth-Applicants argue that it is not enough for them to take their case against just Portugal. They rely on previous ECtHR decisions which say that a country can owe human rights obligations to people outside its borders in exceptional cases. They argue that there are exceptional grounds in this case because all of the Respondent countries contribute to climate change and safeguarding the youth-Applicants’ futures requires action from all of them.

They also highlight the fact that some countries in Europe are less vulnerable to climate impacts than Portugal and have greater levels of ability to adapt. Therefore, if these countries were able to determine how much effort to make to reduce their emissions based only on their own vulnerability and adaptive capacity, this would result in insufficient emissions reductions to protect them. They point to the fact that the German Constitutional Court gave this very reason for deciding it was lawful for Germany to only aim for 2°C of global warming (see FAQ 6) as demonstrating the need for the ECtHR to recognise an “extra-territorial” obligation to mitigate climate change (see FAQ 3).

The youth-Applicants argue that the Respondent countries are obligated by the ECHR to rapidly reduce both emissions released within their borders and also the contributions they make to emissions released in other countries.

As to emissions released within their borders, they rely on the Climate Action Tracker fair share assessments to show that if every country in the world made the same effort as any individual Respondent country, global warming reach a catastrophic 3°C or worse by 2100.

As to their contributions to emissions in other countries, the youth-Applicants argue that the Respondent countries are obligated to:

• cut production and exports of fossil fuels;
• reduce their “consumption” emissions (i.e. emissions released in the production of goods they import from other countries);
• force companies domiciled within their territories to reduce all emissions throughout their global supply chains.

They point to the fact that European governments are not taking steps to do this.

Judgments of the ECtHR are legally binding. The judgment that the youth-Applicants seek would therefore be the equivalent of a legally binding regional treaty compelling the Respondent countries to rapidly accelerate their climate action. In addition, as rulings of the ECtHR are very influential in cases before domestic courts in Europe, this judgment would also give claimants taking future climate cases at the national level a much stronger basis on which to argue their cases.

The Grand Chamber is a 17-judge panel of the ECtHR which only hears cases raising the most serious questions. A tiny fraction of cases filed with the Court end up before its Grand Chamber – currently approximately 0.03%. Only a simple majority (i.e. 9 judges) is required to reach a decision.

This case was referred to the Grand Chamber in June 2022. A total of 22 judges will hear the case as there will also be 5 additional ‘substitute’ judges (in the event that others are unable to continue to participate in the case after the hearing, due to retirement for example).

There are currently two other climate cases before the Grand Chamber. One is a case brought by the Association of Senior Women for Climate Protection (“KlimaSeniorinnen”) against Switzerland and the other is brought by the French MEP Damien Carême against France. Both were heard in Strasbourg on the 29^th March 2023. It remains to be seen whether the Grand Chamber will give rulings in all three climate cases before it at the same time or not. Typically it delivers its ruling within 9 to 18 months after the hearing.

There are several other climate cases before the ECtHR (but not the Grand Chamber) which have been paused pending the outcome of the three cases before the Grand Chamber (see further this ECtHR factsheet).

It is possible for organisations and individuals who are not the Applicants bringing the case before the ECtHR to apply to the Court to become a “Third Party Intervener”. This allows them to make written submissions (limited to 10 pages) on issues within their expertise. A number of individuals and organisations have submitted Third Party Interventions which are supportive of the youth-Applicants’ case. They are:

• The European Commissioner for Human Rights (Dunja Mijatović);
• The UN Special Rapporteurs on Human Rights and the Environment (David Boyd) and Toxic Substances and Human Rights (Marcus Orellana);
• Amnesty International and others;
• Center for International Environmental Law, Greenpeace and Union of Concerned Scientists;
• Climate Action Network-Europe;
• Economic Social and Cultural Rights-Network and others;
• European Network for National Human Rights Institutes;
• Notre Affaire à Tous and Professor Christel Cournil;
• Our Children’s Trust, Oxfam, Center for Climate Repair and Center for Child Law;
• Save the Children;
• Tampere University (All Youth).

The European Commission is also a Third Party Intervener and has made submissions defending the adequacy of the EU’s climate policies.

The European Commission, European Commissioner for Human Rights, and the European Network for National Human Rights Institutes will make brief oral submissions at the hearing of the case.

The youth-Applicants are supported by the Global Legal Action Network (GLAN) in bring their case. They will be represented at the hearing by a team of lawyers led by Alison Macdonald KC. Their case is also supported by the expert opinions of a number of experts on climate science and policy and the mental health impacts of climate change.

Funding for this case has been raised primarily by donations from ordinary citizens from around Europe and beyond, including through a CrowdJustice crowdfund campaign.

No. While it is open to them to seek financial compensation from the Respondent countries, they have chosen not to do so. They are only seeking a judgment compelling these countries to take the action needed to safeguard their futures.