'Does the European Court of Human Rights dictate climate policy?': Stefan Theil

So what I would like to talk about today is the three climate change cases that were before the European Court of Human Rights and that were recently released to the public. it's three cases, the first being Carême v France, involving a former French mayor from a coastal town alleging both in a personal and an official capacity that the French government needed to do more to combat climate change.

The second case Duarte Agostinho and Others v Portugal and about 32 other nations. That case being brought by six Portuguese youngsters against the governments of Portugal and 32 other Council of Europe members, again alleging that they are not taking sufficient action to combat climate change. And finally, the case of Verein KlimaSeniorinnen Schweiz and others v Switzerland.

This time specifically focusing on the climate change policies of the Swiss government. Now these three cases had different outcomes, and I want to highlight some of the things that I think are important about them before I then move on to highlighting some more general points about where we go from here in terms of climate change litigation. So the first two cases that I mentioned, the Carêmea and France case and the DRC and gusto case against Portugal were both dismissed, ultimately on procedural grounds.

The Carême case, for two reasons. The first being that, it was not possible for the former mayor of the town to bring the case in an official capacity. He is a member of the state, so he's not able to bring the case against his own state before the European Court of Human Rights. That doesn't work. And with respect to his personal capacity, well, he had a change in circumstance.

He has recently become a member of the European Parliament and moved to Brussels. So he's no longer subject to the jurisdiction of France when it comes to climate change measures. So essentially on that, for those reasons, the case was ultimately thrown out. The second case that I mentioned that was also thrown out on procedural grounds was the case against Portugal.

In this case, again, for two reasons. The first reason being that it was not possible in the estimation of the European Court of Human Rights, to actually, take this case against the 32 other nations of which the youngsters were in residence. So they sued essentially all the other Council of Europe members and, more importantly, with respect to Portugal, the country in which they are actually resident, they did not exhaust domestic remedies.

Now, essentially, that means that they didn't actually take the case to their domestic courts, didn't actually go through the procedures within the domestic legal system before bringing their case to the European Court of Human Rights. So the case fell on those reasons. The third and final cases that came as an case in Switzerland, and that was more successful, it managed to, survive the procedural hurdles, if you will.

They went through the procedural, steps in the domestic legal system in Switzerland and then ended up before the European Court of Human Rights and therefore ultimately had a chance to actually argue the case in substance. And the European Court grants actually did pronounce itself on the substance. So the senior citizens that were part of that case alleged that Switzerland was doing was not doing enough in order to combat climate change sufficiently.

Now, that meant, in terms of the European Convention, that they were alleging violations of their right to life and more importantly, for our purposes, the rights under article eight, private and family life, which tends to in environmental cases, be quite important. Ultimately, the European Court of Human Rights agreed with them that there was a violation of article eight, chiefly because they felt that Switzerland wasn't doing enough to combat climate change.

Now, that might, on the surface, sound quite revolutionary and quite a strong statement from an international court. But I want to persuade you that that actually was not the case, that the decision was actually quite orthodox, and that ultimately what the European Court of Human Rights ended up deciding leave states with a significant margin of appreciation and a lot of difference.

In other words, to decide on what kind of policies they want to pursue. Okay, so let me tell you about the three important takeaways that I think we can take here from these sets of three decisions. The first really is, is that procedural barriers, procedural hurdles matter. So it's really important as it already was. And similar cases being brought by before other international courts that you exhaust domestic remedies that you take the case to the appropriate domestic authorities that you have them decide on.

And then only then do you bring the case to the European Court of Human Rights or before the Committee of the convention on the rights of the child, or whatever other international forum you want to take it to? That really is an important lesson here, especially for the cases involving the Portuguese government and the case involving the French government.

Secondly, and I think more importantly, it is also it was perhaps received with some surprise in certain quarters that the European Court of Human Rights decided that climate change policy could fall within the ambit of the convention. But really, this isn't that much of a surprise to those people who have been paying closer attention to the doctrine of the European Court of Human Rights on environmental issues.

Now, this is where I have a shameless plug to make. I wrote a PhD and subsequently a book on this subject, so I was quite familiar with the case law. And one of the important things that came out of these environmental decisions taken, taking them in in the round anyway, is that when there is a established environmental harm, then the state is under an obligation to regulate and to enforce said regulations in order to do something.

In other words, about the environmental harm. And that is a principle that I think the court has essentially applied here to the climate change context as well. It is not so much an obligation to do anything in particular about climate change, but it really is more that the state needs to have some sort of plan to reduce greenhouse gas emissions.

the court says it needs to reduce its greenhouse gas emissions, generally speaking. But in terms of the specifics, really, a lot of the decision making is left with the political process. And this is takes me to the third point that I wanted to make, which is really that this is a quite differential decision. Ultimately, that leaves the majority of the important decisions with the political process.

Now, assuming that you are that a state actually has a certain level of commitment in terms of what it wants to do in terms of greenhouse gas emission reductions, and assuming that it actually has some sort of plan, that it is more or less following in practice, then the state will be on the safe side. So the court has said that it will judge the climate change policies really only on five criteria.

And these are also not to be seen as, a sort of a tick box exercise where you need to meet every criteria. And if you don't, then that moment, if that moment comes, then you've sort of lost out. That's not what it is at all, actually. It's just five criteria that the court will take into consideration. But ultimately it's a holistic assessment of what may be needs to be done.

So those five criteria, I am going to read this off the notes, because I don't have them in my head at any given moment. is to adopt general measures that specify a timeline for the reduction of carbon emissions and that specify what the overall carbon budget is for the state in whatever kind of reduction targets they are pursuing.

It also needs to prescribe intermediate, targets on the way along to that final outcome. And it needs to have some sort of pathway in mind. So it needs to have a plan, essentially how it's going to get to the point where it wants to get. It also needs to provide some level of evidence that it is complying or at least trying to comply with, these kind of pathways and reaching these outcomes.

And even if it isn't necessarily there yet, what is going to do in order to get to that pace in a reasonable amount of time? It also needs to updates. The state needs to update its targets in line with the best available scientific evidence. So if it turns out that the carbon emissions are actually significantly higher than modeled, or if it turns out that actually the carbon budget that remains for the state is quite a bit lower than was estimated, then that needs to have some sort of adjustment that needs to be reflected to some extent.

And finally, it needs to take action. Good time. In other words, we can't leave it a state, can't leave it to the last second. In order to combat climate change, it needs to do something while there's still scope, and there is still hope that something can actually be done to avert, the catastrophic consequences that might otherwise ensue.

Now, why is that? why is that actually quite differential? Well, because the marginal appreciation kicks in at this point. So the European Court gives the states quite a large margin appreciation in figuring out all of the specifics. It doesn't prescribe any particular measures. It doesn't require states to do anything in particular. It doesn't require them to build solar farms, for instance, or to get rid of nuclear energy or to stop importing, combustion engine cars.

None of these things. It really says you need to figure out, do you need to have a plan? But otherwise we'll leave you to figure out how to do it and what measures can be taken, what measures should be taken within your specific national context? The only really small area where the margin position is more limited is on the margins of those decisions.

So while there is a lot of deference towards the states in terms of figuring out what to do specifically in order to reach the targets that they set themselves, there is much less deference on having targets in the first place. So you need to specify some sort of overall target, need to be employing a plausible regulatory approach to reach them, and you need to consistently enforce those targets.

But there is no specification as to how you should accomplish that goal in details. So I think in summary, and this is really the big takeaway here, this is actually a quite deferential decision. This is an attempt of the European Court of Human Rights to kick the ball back, if you will, into the political arena to allow the political process to play out the international diplomatic process to play out in order for these agreements to come to light and to actually effectively combat climate change.

It's also notable that the European Court did not require any specific measures, as I said, but also left the enforcement of judgments to the political process of the Council of Europe. So really, on all fronts, I think the strong preference of the courts seems to be for the political process to sort this out. It really doesn't want to get involved, and certainly doesn't want to prescribe any particular pathway towards achieving, carbon neutrality in the future.