Oral statement before the Grand Chamber of the European Court of Human Rights

On behalf of the European Network of National Human Rights Institutions (ENNHRI), Adele Matheson Mestad, Director of the Norwegian National Human Rights Institution held the following statement before the Grand Chamber of the European Court of Human Rights, in the case Duarte Agostinho and Others v. Portugal and 32 Others.

Download the entire statement from ENNHRI website here.

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Madam President, Members of the Court,

1. Introduction

The climate crisis is at its core a human rights crisis.

ENNHRI¹ respectfully submits that it is within the well-settled jurisprudence of this Court to review whether appropriate national frameworks are in place to reduce emissions that fundamentally threatens lives and homes.

Children and young people have little democratic influence concerning climate change but will carry a disproportionate burden of its impacts.² There is now a real risk of triggering irreversible tipping points and breaches of adaptation limits beyond 1.5 degrees.³ In plain words, a hot-house Earth with devastating impacts for children.

It is necessary and legitimate for this Court to protect children’s best “interests in living in a safe environment”⁴ to provide democratic accountability. Otherwise, short term political priorities are at risk of pushing the reduction burden onto young and future generations. This will inevitably violate their rights.⁵

Although this case raises several procedural questions, ENNHRI respectfully asks the Court to provide substantive guidance to the extent possible, for the benefit of legal clarity.⁶

2. ENNHRI’s views on the law

I first turn to ENNHRI’s view on jurisdiction.

2.1. Jurisdiction over territorial and extraterritorial harm in the Convention space caused by emissions under a State’s effective control under Article 1

First, individual States must undoubtedly protect persons on their territory from the harmful effects of domestic emissions under their effective control.

Furthermore, States also exercise effective control over exported combustion emissions from fossil fuels by approving extraction, regardless of where the carbon is ultimately combusted. The accounting rules of the Paris Agreement are aimed at avoiding double-counting and cannot absolve a State from its human rights obligations.⁷ A State must protect inhabitants against the territorial effects of activities it licenses and controls.⁸

The question of extra-territorial jurisdiction is, however, a complex one. Although jurisdiction is primarily territorial, emissions inevitably cause harm across borders. This specific feature could justify a different approach to jurisdiction in climate cases. The Inter-American Court and the UN Children’s Committee, relying on the no-harm rule under international law, recently held that States are accountable for activities that cause harm to children in other States.⁹ If the Court applies this approach, universal jurisdiction could be avoided by limiting jurisdiction to the special transboundary features of climate change, and only within the Convention Space.

In any event, the Court could further limit extra-territorial jurisdiction through a “divided and tailored” approach.¹⁰ This could apply to the procedural aspects of Articles 2 and 8 only, requiring States to assess “the effects”¹¹ of emissions under their effective control for children in other Contracting States.¹²

2.2. Children are existing and potential future victims of climate change under Article 34

I now turn to victim status.

First, a child’s individual complaint does not become an actio popularis simply because numerous other children are also harmed by climate change. That would make it impossible to challenge the most widespread human rights violations.

However, climate harm raises evidentiary questions. Cordella and Pavlov confirm that victim status and applicability of Article 8 don’t require direct “medical evidence” of “damage to the applicants’ health from pollution.¹³ It was sufficient in these cases that general “reliable data” proved that pollution “adversely affected” the “well-being” of people in that area through an “elevated risk to health”.¹⁴ In Pavlov, this related to half a million people. Victim status in climate cases should be assessed in the same way to avoid a “rigid and inflexible” interpretation.”¹⁵ There is no doubt that emissions disproportionately cause mental and physical harm for children in Portugal.¹⁶ And science shows that it will get worse.¹⁷

Children may also be potential victims based on “convincing evidence” of future environmental harm.¹⁸ Recognising potential victimhood in climate cases for vulnerable children, with little democratic influence, would allow them to challenge¹⁹ climate policies that put them at risk of harm before climate change becomes irreversible.²⁰ In simple terms, if you wait, it will be too late.

2.3 Articles 2 and 8 apply and require emission cuts to protect children

I now turn to ENNHRI’s main points today, on applicability and obligations under Articles 2 and 8.

In consistent case law, this Court has required States to protect individuals from foreseeable environmental hazards that constitute a real risk to life and private life.²¹ This case law does not discriminate regarding the source of the risk. Be it air pollution or asbestos,²² the Court has reviewed whether States have taken appropriate measures to protect against harm. Greenhouse gas emissions are no different. If anything, they cause more harm. Therefore, apex courts in the Netherlands and Germany used your case law to require States to mitigate that harm by reducing emissions.²³ ENNHRI asks the Court to do the same.

To secure democratic legitimacy, it is vital that States have a margin of appreciation to balance different interests in the choice of means to reduce emissions. But the Court is well placed to review whether States are actually implementing the necessary emission reductions.²⁴

This is simply because children’s rights cannot be protected by adaptation alone.²⁵ With further warming, hard limits to adaptation will be reached.²⁶ Adaptation without mitigation is akin to scooping water out of a sinking boat, before plugging up the hole.

Also, the common argument that emissions are merely a “drop in the ocean” will leave us with a tragedy of the commons. As in Blakaj, the relevant question is whether a State could have done its part to reduce the risk.²⁷ Every tonne of CO₂ adds to global warming and will remain in the atmosphere, aggravating future harm.²⁸ Conversely, every tonne that is not emitted, reduces climate harm for children.

To determine whether a State’s mitigation measures are appropriate, the Court could apply reliable methods to decide a State’s fair share of emissions reductions, as recommended by the UN Children’s Committee.²⁹

However, if the Court refrains from defining fair share, case law gives a firm legal basis to review whether States have “adopted and implemented” an “effective” legal and administrative framework to protect rights.³⁰

This Court has repeatedly scrutinised the quality of domestic laws,³¹ even more so in the context of dangerous activities.³² It should do the same for climate legislation, because emitting greenhouse gases existentially threatens human lives.

ENNHRI submits that the Court should require three elements to effectively protect rights: science-based targets, implementation, and procedural guarantees.

First, best available science³³ must inform what is necessary to protect rights. The Court should review whether States have developed³⁴ a science-based emission reduction target, for instance through a national carbon budget with reduction pathways, informed by legal principles that constitute common ground, such as the principle of precaution,³⁵ highest possible ambition,³⁶ capability,³⁷ and intergenerational equity.³⁸

At a minimum, States must deliver on their repeated commitments to limit warming to 1.5 degrees.³⁹ This is not only a political consensus, but a red line above which the risk of harm to children increases dramatically. 1.5 requires States to enact deep, rapid, and immediate emission cuts to reach net zero before 2050.⁴⁰

Second, implementation. “Regulations to protect guaranteed rights serve little purpose if they are not duly enforced.”⁴¹ This Court has therefore repeatedly controlled the effective functioning of such frameworks and must continue to do so, as the bridge builder over implementation gaps.

Thirdly, the Court must review whether procedural guarantees are in place. To ensure democratic legitimacy and accountability, children’s best interests and the right to be heard,⁴² access to information,⁴³ as well as mechanisms for independent oversight must be secured.⁴⁴

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And finally: the EU has a comprehensive climate regime. But that does not preclude Member States from having more ambitious reduction targets at the national level.⁴⁵ Nor does it absolve this Court from the responsibility to clarify the separate obligations under the Convention.⁴⁶

3. Conclusion

To conclude: This Court once developed its case law to effectively protect core human rights from environmental harm. Today, the Court is not in substance asked to radically expand its case law, but to apply it to the most serious threat to human rights in this century, if not ever, to protect children. ENNHRI does not contend that courts can solve the climate crisis alone. But this Court must play its part, as all others, must play theirs. Only then can the Convention system keep its place as the world’s leading protector of human rights in the 21^st century.

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Thank you.