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Environmental, Social and Governance (ESG) Update - December 2024

December 10, 2024
Business Litigation Reports

Implications of Climate Change Litigation Before the European Court of Human Rights

            On April 9, 2024, the European Court of Human Rights (“ECHR”) handed down a triad of long-awaited judgments, each dealing with human rights claims relating to climate change.  Two of these cases were dismissed on admissibility grounds, and one was decided on its merits.  This short piece does not  provide a comprehensive analysis each case.  Rather, it synthesizes the ECHR’s core decisions and highlights potential wider implications of the ECHR’s analysis.  Ultimately, the ECHR’s analysis of climate change in the human rights context is likely to drive the approach taken in future climate change litigation against States (concerning the sufficiency their mitigation and adaptation measures) and against companies and other entities (concerning their contributions to global emissions).

(1)        Carême v. France

            In Carême v. France, a former mayor of the city of Grande-Synthe (a suburb of Dunkirk, FRA) claimed that his geographical location was particularly vulnerable to the effects of climate change (with greater risks of flooding and the erosion of the coastline) and that national action by French authorities on climate change was insufficient.  He asserted that French authorities breached the European Convention on Human Rights, specifically Article 2 (right to life) and Article 8 (right to private and family life).  But by the time the case reached the ECHR, the claimant had moved from France to Belgium.  Accordingly, the ECHR found that he no longer had “victim status,” and so dismissed his claim on admissibility grounds.

While the Court’s admissibility finding based on the claimant’s “victim status” was a straightforward application of ECHR case law (a/k/a Strasbourg jurisprudence), it can be considered in its wider context.  Indeed, while climate change is a global issue that affects everyone in some form, climate cases are likely to be brought by those most affected by climate change or most susceptible to its effects.  These include individuals hailing from Small Island Developing States—who have already been at the forefront of climate advocacy—and other vulnerable populations, such as Indigenous peoples, and those living in or adjacent to at-risk areas.  Demonstrating actual impact from the effects of climate change on affected persons will remain an important evidentiary requirement—and certain claimants are likely to have a more compelling case as the demonstrable impacts of climate change (for example, from sea level rise) and consequent individual harm are likely to be more apparent.  It is in this context that all actors—whether States or businesses entities—must be cognizant of their actions’ impact on climate change, and the resulting impact on individuals, and should undertake appropriate due diligence and, if appropriate, engage in remedial measures, in accordance with prevailing international law and guidance.

(2)       Duarte Agostinho v. Portugal

            The second case was brought by a number of Portuguese nationals against their country, Portugal, as well as 32 other Convention States, on the basis that the applicants faced risks of harm from climate change that would significantly increase over the course of their lifetimes.  Two key issues featured in the ECHR’s treatment of the application: extraterritorial jurisdiction and the exhaustion of remedies.

             On extraterritorial jurisdiction, the ECHR took a predictable approach—it dismissed the applicants’ claims against every state other than Portgual for lack of jurisdiction.  But while the ECHR declined to adopt an expansive approach to extraterritorial jurisdiction, it nevertheless commented on the inherent extraterritorial nature of climate change.  The ECHR noted that “albeit complex and multi-layered, there is a certain causal relationship between public and private activities based on a State’s territories that produce GHG emissions and the adverse impact on rights and well-being of people residing outside its borders and thus outside the remit of that State’s democratic process.”  It continued, noting that “[c]limate change is a global phenomenon [… and] the problem of climate change is of a truly existential nature for humankind, in a way that sets it apart from other cause-and-effect situations.”  This commentary makes clear that although the ECHR declined to exercise extraterritorial jurisdiction over the particular claims in Duarte Agostinho,  overseas conduct may yet the subject of climate change claims.  Indeed, beyond the ECHR, tortious claims based on overseas conduct have featured prominently in climate litigation strategy.  And following the European Union’s adoption of the Corporate Sustainability Due Diligence Directive, one may expect a greater number of civil claims to be brought in relation to environmental issues from activities in multinational supply chains.

            On the exclusion of remedies, the ECHR again followed a predictable path—it dismissed the applicants’ claim against Portugal for failing to first raise that claim in any Portuguese court.  The requirement for exhaustion of domestic remedies is well-trodden ground in international human rights law.  This aspect of the Duarte Agostinho holding is an echo of Saachi et al. v. Argentina et al.,  case brought before the UN Committee on the Rights of the Child, where claims by those petitioners were likewise declared inadmissible given their failure to exhaust domestic remedies.

(3) Verein KlimaSeniorinnen Schweiz v. Switzerland

            This case resulted in a 657 paragraph judgment on the merits that broke new ground by expressly econnecting climate change and human rights.  In its decision, the ECHR explained that, “given the necessity of addressing the urgent threat posed by climate change, and bearing in mind the general acceptance that climate change is a common concern of humankind […], there is force in the argument put forward by the UN Special Rapporteurs that the question is no longer whether, but how, human rights courts should address the impacts of environmental harms on the enjoyment of human rights.”  The key points from the ECHR’s decision are: (1) the applicants, an association of senior women, argued that they were particularly susceptible to the effects of climate change due to the increase of heatwaves in Europe, driven in part by insufficient action by Swiss authorities in respect of climate change mitigation; (2) while the ECHR recognized that Switzerland was entitled to some deference regarding development of a domestic regulatory framework to tackle climate change, it nonetheless found “critical” gaps in that process, including (i) failure to quantify national GHG emissions limitations, (ii) failure to meet past GHG emission reduction targets, and (iii) failing to act in a timely and appropriate manner to devise, develop and implement the relevant legislative and administrative framework; and (3) accordingly, Switzerland was found to be in breach of Article 8 of the Convention (the right to private and family life).  These conclusions will have wide ramifications in Europe, where principles elucidated by the ECHR impose a duty on States to adopt measures to mitigate the effects of climate change under the Article 8 framework.

            Climate change is fueling litigation across the board, and the intersection between climate change and human rights is proving an increasingly attractive avenue of redress for claimants, alongside others such as judicial review, treaty-based claims, and actions based on private law.  These cases before the ECHR represent important developments in this developing area of law and one can expect that other courts and litigants (both claimants and defendants) in Europe and elsewhere will draw on the Court’s principles and reasoning in future climate actions.