THE CASE

The goal of this case is to seek a legally binding decision from the European Court of Human Rights (ECtHR) requiring governments in Europe to take the urgent action needed to stop the climate crisis. The youth-applicants argue that European countries must not only adopt much deeper and immediate cuts to emissions released within their borders but also tackle their contributions to emissions released overseas, for example through their exports of fossil fuels.

In bringing this case, the six youth-applicants seek to add to the increasing pressure which ordinary people across Europe are putting on their governments to take this action now. They are going to the ECtHR because its decisions have the power to bring about significant changes in the policies of European governments.

Importantly, while the ECtHR can order States to pay compensation, the youth-applicants are not seeking any money. This case is solely about making European governments act to protect their futures.

In their application, the youth-applicants contend that climate change interferes with their right to life, their right to respect for their private and family lives and their right not to be discriminated against.

Climate change affects their right to life simply because it creates a risk to their lives. The forest fires which killed over one hundred people in Portugal in 2017 and which were worsened by climate change demonstrate that they and others already face a risk to their lives. This is a risk which will increase significantly over the course of their lifetimes. For example, on the current path leading to about 3°C of warming by the end of the century, thirty times more people are expected to die in Western Europe from extreme heat in the final three decades of this century, than in the beginning of the century.

Climate change also affects the youth-applicants’ right to privacy, a right which covers their physical and mental wellbeing. In recent years Portugal has experienced more intense and prolonged heatwaves as a result of climate change. For example, during a heatwave in August 2018, Lisbon experienced a record high temperature of 44°C. These heatwaves have interfered with the youth- applicants’ ability to exercise, to spend time outdoors and to sleep properly. Again, these extreme events will only worsen dramatically over time if we remain on our current path. Towards the end of the youth-applicants’ lifetimes, Portugal could face heatwaves, with temperatures exceeding 40°C, which last for over a month. The effects of ever-worsening heat extremes on their health and wellbeing interfere with their right to privacy.

As an inevitable result of facing into such a future, climate change also takes a toll on the youth- applicants’ mental health. They worry about the world that they and the families which they hope to have in future will live in. The anxiety that climate change causes them is another example of how it interferes with their rights to respect for their private and family lives.

Climate change interferes with the youth-applicants’ right not to be discriminated against. As young people, they stand to experience the worst effects of climate change simply because they will live longer. Because there is no justification for forcing them and other young people to bear this burden, European governments are wrongly discriminating against the youth-applicants through their failures to properly and urgently fight climate change.

Finally, when the European Court of Human Rights “communicated” the case to the respondent governments (see the final FAQ), requiring them to respond to the application, it raised the question of its own accord whether the youth-applicants’ right not to be subjected to “inhuman or degrading treatment” has been breached. Never before has the Court found a violation of this right in a case concerning environmental harm. The fact that the court raised the question itself is an indication of how impacted the judges were by the evidence of what the youth-applicants stand to endure because of climate change over the course of their lifetimes unless the radical action needed is taken.

This case is brought against the Member States of the EU (Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Germany, Greece, Denmark, Estonia, Finland, France, Croatia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, the Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain and Sweden) as well as Norway, Russia, Switzerland, Turkey, Ukraine and the United Kingdom. Taking the Member States of the EU as a bloc of countries, these countries are the major emitters within Europe.

A key feature of this case is how it addresses the fact that States globally have not agreed between themselves what each State must do if the world is to meet the target of maintaining global warming at 1.5°C, as set out in the Paris Agreement. The absence of a globally agreed approach to burden- sharing creates uncertainty as to what amounts to any one State’s “fair share” of the global effort to fight climate change. So far, States have taken advantage of this uncertainty and chosen self-serving interpretations of their “fair share.” Of course, if every State does this, the collective outcome will be one which far exceeds the 1.5°C target. This, indeed, is the very reason we are careering towards an imminent climate catastrophe. We argue that the European Court of Human Rights (ECtHR) must resolve the uncertainty around the “fair share” question in favour of the youth-applicants and not States. In practice, this means that the adequacy States’ climate change policies must be measured against the relatively more demanding measures of their “fair share”.

This argument is designed to prevent States from escaping responsibility for the harm caused by climate change through emissions cuts which are collectively too weak to stop the climate crisis. In this way it is similar to the approach taken by the Climate Action Tracker (“CAT”) to rating the adequacy of States’ climate change policies. Under the CAT’s approach, it is only where States’ emissions reductions are in line with the more demanding measures of their “fair share” that they are given a “1.5°C Paris Agreement Compatible” rating. The CAT ratings for the countries being sued in this case are as follows: the EU as a whole, Norway, Switzerland and the United Kingdom are each given an “insufficient” rating while Russia, Turkey and Ukraine are rated “critically insufficient.”

We argue that the ECtHR should adopt this approach to ensure that European governments are required to adopt emissions cuts which are collectively consistent with the 1.5°C target. In the EU context, this means that the EU, as a whole, must commit to reducing its emissions by at least 65% by 2030, as called for by numerous campaigning organisations.

The European Court of Human Rights (ECtHR) was established on the understanding that States – including their domestic courts – are primarily responsible for securing people’s human rights. And in practice it is only domestic courts which have the tools to force governments to take the measures necessary to keep climate change to the 1.5°C target set by the Paris Agreement. At the same time, the ECtHR exists to address breaches of human rights when States fail to comply with their obligations under the European Convention on Human Rights (ECHR). In doing so, it clarifies what these obligations require States to do in specific situations; this then enables domestic courts to properly apply the Convention when they are called on to do so.

The normal rule is that before bringing a case to the ECtHR, an individual must seek to have their rights vindicated by a domestic court. There is an exception to this rule, however, which applies where there is no adequate remedy that is reasonably available to such an individual. This case, which is about the contribution by over thirty countries to the risk of harm from climate change, seeks to rely on this exception. It is important to understand clearly why it does. Firstly, there is an obvious argument: it would not be practically possible for a group of children and young adults to bring cases in thirty-three different countries and pursue them all the way to their highest courts.

The second argument is more nuanced: we argue that the remedies currently available at the domestic level in Europe are not adequate. Critically, this is not to say that there are no domestic remedies available in Europe. Nor is it to say that domestic courts are not the appropriate courts in which to challenge the adequacy of States’ climate change policies as incompatible with the ECHR – in fact, we say the opposite. Rather, we argue that from the domestic decisions handed down in Europe so far, it is clear that domestic courts can and must do more. This is made clear by cases such as those taken in the UK and Norway, where courts have refused to order their governments to do more.

It is even also true of the landmark decision in the case of Urgenda v The Netherlands. In that case, the Dutch Supreme Court held, just as we argue, that the ECHR requires States to “take measures to counter the genuine threat of dangerous climate change.” It therefore held that the Netherlands had to reduce its greenhouse gas emissions by a specific amount i.e. 25% (relative to 1990 levels) by 2020. This decision is ground-breaking because it is the first in which a court made an order of this kind. It demonstrates that domestic courts can force governments to take stronger action on climate change. The climate emergency demands that courts go even further than the Dutch courts did in Urgenda. They arrived at this figure on the basis that developed countries had previously agreed to reduce their emissions by 25 – 40% (relative to 1990 levels) by 2020 in order to keep global warming to 2°C. Of course, if every developed country were to adopt the lowest end of this range, the collective outcome would be inadequate.

Our case seeks to build on the truly historic precedent set by the Urgenda decision. We seek a ruling from the ECtHR that States are required by the Convention to adopt emissions cuts that are collectively consistent with the 1.5°C target. A decision of this kind would then greatly enhance the prospect of domestic courts in Europe forcing their Governments to take such measures.

The Court of Justice of the European Union (CJEU) is, as its name indicates, the judicial body of the EU. It is responsible for interpreting EU law, which includes the EU Charter on Fundamental Rights. The European Court of Human Rights, on the other hand, is a court established under the auspices of the Council of Europe which is responsible for interpreting the European Convention on Human Rights. While the EU and Council of Europe are often confused, not least because they share the same flag, they are distinct bodies.

The People’s Climate Case, which is was brought before the CJEU, was therefore taken to a different court to the European Court of Human Rights. It was also being taken against the EU as a separate entity to its Member States whereas in this case it is the Member States of the EU themselves (as well as other States) which are being sued. On the 25th March 2021, the People’s Climate Case was dismissed as inadmissible on the grounds that the applicants in that case were not uniquely affected by EU climate policies. This decision further reinforces the need for a European-wide binding legal decision on climate change from the European Court of Human Rights.

The Covid-19 pandemic has not removed the urgency to act to prevent a climate catastrophe. Had governments known prior to 2020 than an outbreak of the coronavirus was imminent, it goes without saying that they would have taken every step possible to prevent it. Governments know that a climate catastrophe is around the corner, they know what needs to be done to prevent it and they have the means to do so. And yet governments around the world, including European governments, are still failing to take the necessary action.

The climate crisis, which poses nothing less than an existential threat to humanity, stands to cause destruction on a scale far greater than any crisis ever seen before. There is a rapidly closing window of time within which to stop it and we must act now. In May 2020, over 350 organisations representing over 40 million health workers worldwide stated that a truly healthy recovery from the Covid-19 crisis means acting to prevent the climate crisis. With European governments planning invest to invest billions to revive our economies, they must use this money to end Europe’s reliance on fossil fuels once and for all.

There have been some important developments in this case since its filing in September 2020. First, within weeks of its filing, the Court decided to fast-track the case based on the “importance and urgency of the issues raised.” It then “communicated” the case to the respondent governments – the formal term for requiring the governments to respond to the case. This was a very significant development as the vast majority of cases filed with the European Court of Human Rights are dismissed as being inadmissible without being communicated. In 2019, for example, only 15% of cases were communicated and only a smaller percentage again were communicated and fast-tracked. Following the communication of the case, the respondent governments simultaneously wrote to the Court asking it to overturn its decision to fast-track the case. They also asked the Court for an opportunity to argue that the case is inadmissible and should not be heard prior to having to defend their climate policies. The Court rejected both requests. Now the governments must respond to the case in full by the 27th May 2021. Once they have done so the Court will provide the youth-applicants with a deadline to respond in turn.