– Pranav Ganesan*
In this article, I reflect on the challenges and prospects of litigating insufficient climate action by States using international human rights law, before international and regional tribunals. I do so by looking at what can be gleaned about the challenges involved in such litigation by analysing the propositions affirmed in the decision of the Committee on the Rights of the Child in Sachhi et al. v Argentina, Brazil, France, Germany and Turkey as well as the circumstances in the case of Duarte Aghostinho et al. v Portugal and 32 other States which is pending before the European Court of Human Rights. I first consider the challenges at the stage of admissibility, and then move on to two specific challenges encountered in a case like that of Duarte Aghostinho. I then round out my discussion with a justification of my assessment- that international human rights law gives us a way to hold States accountable to standards that may be stricter than those found under the current international climate change regime.
On 8 October 2021, the Committee on the Rights of the Child (‘CRC’) pronounced the admissibility decisions in a case brought by sixteen children against five state parties to the United Nations Convention on the Rights of the Child (‘UNCRC’), viz. Argentina, Brazil, France, Germany and Turkey. Upon reading the CRC’s decisions, not all were inspired or elated. EarthJustice, a prominent environmental NGO describes the CRC as having turned its back to the child litigants, and sending them the grim message: “You’re on your own.” On the other hand, some scholars have reflected on the decision as ground-breaking and a “major win for future climate change complaints.” I find myself to be somewhat in agreement with the latter view, in that, while it is indeed ground-breaking, I cannot agree with describing it as a ‘major win.’ My reasons will be made apparent in the course of this article. (For a breakdown of the CRC’s decisions in Sachhi et al. v Argentina, Brazil, France, Germany and Turkey, I would recommend readers of this article to read Aiofe Nolan’s article.)
In what will follow, I will consider some of the propositions affirmed by the CRC in Sachhi to reflect on some of the challenges and hopes in litigating insufficient or unambitious climate change action (particularly by way of climate change mitigation measures) on the basis of international human rights law. I shall do so by reference to the circumstances in the case of Duarte Aghostinho et al. v Portugal and 32 other States (‘Portugese Youth case’) that is pending before the European Court of Human Rights (ECtHR). Similar to the case of Sachhi. the complainants in the Portuguese Youth case are neither citizens nor residents of all of the respondent States. It is worth noting that the ECtHR has substantially contributed towards jurisprudence in respect of environmental harms that affect human rights, to the extent that Pedersen describes the body of case law as recognising a right to a healthy environment “all but in name.” In Budayeva v Russia, the ECtHR held that under the ECHR, States Parties have an obligation to take positive action that is required to protect individuals against foreseeable environmental harm (mudslides in this case), even if the State did not directly cause the harm. And in Tatar v Romania, the Court invoked the ‘precautionary principle’ to find that the State’s must have in-place mechanisms that regulate the “authorising setting-up, operating, safety and monitoring of industrial activities,” especially those which endanger the environment and human health. It also held in this case that such regulatory regimes must include appropriate provisions which may allow the public to assess the risks. All of this was based on the State’s duty to protect the human right to private and family life from the adverse effects of pollution. While these cases constitute a strong basis that seemingly supports the climate change case brought against 33 State Parties of the European Convention on Human Rights (‘ECHR’) by six Portugese children and youth, the framework of international human rights law that the case operates under poses challenges that are hard to surmount.
I. Challenges at the stage of admissibility
Human rights treaties obligate state parties to secure the human rights of persons ‘within their jurisdiction’ or ‘subject to their jurisdiction.’ Where complainants cannot demonstrate that the fall within or subject to the respondent states’ jurisdiction, their complaint is held to be inadmissible. Under international human rights law, while the question of a State’s responsibility to protect persons within their territory may have a straightforward answer, the question of States’ responsibility to secure the enjoyment of human rights of people in other States from the harmful effects of climate change that are, (at least in part) a result of their emissions, is not. The ECtHR jurisprudence on this issue is unhelpful as case law has held that as a general rule, obligations are owed territorially (Bankovic & Others v Belgium & 16 other States, ECtHR); and extra-territorial obligations are owed in exceptional situations where the State exercises some degree of control over persons or territory abroad (See Loizidou v Turkey;Medvedyev & Others v France; Hirsi Jamaa & Others v Italy cases, ECtHR). International Court of Justice (ICJ) jurisprudence also reflects a similar position (Construction of a Wall; Georgia v Russia, ICJ). So how can the Portuguese youth complainants invoke the responsibility of the respondent States other than Portugal?
Their chances of success largely depends on the ECtHR adopting an approach akin to that of the Inter-American Court of Human Rights (IACtHR) in its 2017 Advisory Opinion, where the Court recognised a new jurisdictional link for applicability of human rights obligations- where the State exercises “effective control over the activities carried out that caused the harm” to persons abroad. The IACtHR justified this approach by finding that the prior cases recognising a limited extra-territorial jurisdictional link did not correspond to events of a similar nature to those that would arise vis-à-vis certain environmental obligations under international human rights law (as under the American Convention on Human Rights). This is exactly what the CRC did to reject the respondent States’ objection that the complainants do not fall within their jurisdiction. It’s observations in this regard are worth reproducing:
“[The] Committee finds that the appropriate test for jurisdiction in the present case is that adopted by the [IACtHR] in its Advisory Opinion on the Environment and Human Rights. This implies that when transboundary harm occurs, children are under the jurisdiction of the State on whose territory the emissions originated for the purposes of article 5 (1) of the Optional Protocol if there is a causal link between the acts or omissions of the State in question and the negative impact on the rights of children located outside its territory, when the State of origin exercises effective control over the sources of the emissions in question.” (emphasis added).
In the same paragraph, the CRC went on to clarify that this link must be demonstrated as ‘reasonably foreseeable’ for a complaint of this type to admissible before the committee. This new type of jurisdictional link- based on the duty not to cause transboundary harm under international environmental law seems logical at first blush. Indeed, it is the state which is in control of activities that affect individuals’ enjoyment of human rights, rather than the state in which they are present, who should be held responsible for violations of human rights. However, at a more abstract level, this new jurisdictional link is at odds with the principle that a situation of extra-territorial jurisdiction is exceptional in nature, since the duty not to cause transboundary harm is a rule of international law. This notwithstanding, the recognition of this new jurisdictional link is monumental for individuals to hold foreign States whose climate change response measures are insufficient relative to their common but differentiated responsibilities and respective capabilities, in light of their relevant national circumstances, responsible before international human rights courts. In this sense, the recognition of this kind of extra-territorial jurisdiction is remarkable, and would now lead to the ECtHR asking itself whether it wants to deviate from the approach adopted by not one, but two international human rights tribunals. Despite the remarkable finding on extra-territorial jurisdiction, I find that the answers to some questions that arise in the wake of this are still unclear.
Since the IACtHR did not demarcate the implications of the new jurisdictional test to only civil and political rights, would this mean that economic, social and cultural rights may be implicated? If so, does the threshold (in terms of gravity of violation of the latter) that would enable such a jurisdictional link vary between States due the concept of “progressive realisation” (Article 2, ICESCR)? As Antal Berkes notes in his critique of the 2017 Advisory Opinion, this invites further questions such as whether such threshold should be determined in accordance with circumstances of the State of origin or the circumstances of the State where the harms manifest? While the nature of the rights invoked by the complainants in Sachhi were such that the CRC did not have to dealt with this conundrum, clarifications on this issue would have been ideal.
B. Exhaustion of domestic remedies
The requirement that the complainant demonstrate that they have exhausted all remedies available to them at the domestic level before approaching the tribunal is a rule of admissibility (more appropriately, a golden rule rather than a strict one) that is commonly applicable to all international human rights tribunals. The exceptions to this requirement can be described as being carved out based on a principle of fairness. The list usually includes- circumstances where appropriate domestic remedies do not exist or have no chance of success or would be unreasonably prolonged. The travaux to the Optional Protocols to the ICCPR and ECHR indicate three reasons that underlie this requirement: to ensure that local courts are not replaced by international ones, to ensure that international tribunals are not overburdened and to uphold the sovereignty of member States (Kende, 2020). In the context of international climate change litigation, non-exhaustion of domestic remedies can be a difficult hurdle to surmount, as is evinced by the CRC’s decision in Sachhi. The CRC peered into the legal system of each respondent State and held that the complainants had not discharged their burden of demonstrating that they may be absolved from requiring to exhaust domestic remedies in each of the respondent States. Aiofe Nolan remarks that the CRCs decisions were “convincingly reasoned,” arguing that “there was simply no way of admitting these complaints without effectively gutting the [Optional Protocol to the Convention on the rights of the Child on a Complaints Procedure] exhaustion of domestic remedies requirements.” On this issue, Wewerinke-Singh took the opposite stance, questioning whether admitting the complainants’ arguments that they are absolved from exhausting domestic remedies really beyond ‘the limits of the legal powers’ of the CRC. In agreement with the latter stance, it is argued that expecting the complainants (all children of modest means, some of who belong to small island states), to seek remedies in each of the respondent States’ local courts before approaching the CRC in a case of this type would indeed be unreasonable. What exacerbates the complainants’ difficulty in litigating climate change issues on the basis of their human rights, in the respondent States’ respective jurisdiction is the peculiarity of climate change in comparison to other environmental problems. Climate change is an environmental problem of a ‘legally disruptive’ nature, perplexing courts, lawyers and scholars on whether existing doctrines in legal systems can reconcile issues raised by it (Fisher, Scotford & Barritt, 2017). The problematic nature of the expectation from the complainants, some of whom face the risk that the country they reside in will become uninhabitable in about 10 to 15 years (as acknowledged by the HRC in its Teitiota decision), to wager their time and resources by exploring litigation strategies previously unexplored or insufficiently tested in each respondent State needs no further elaboration. While one may retort by referring to successful attempts at litigating climate change inaction/un-ambitiousness at the domestic levels by citing cases such as Urgenda and Neubauer in the Global North, to Ashgar Lehgari and Shreshta in the Global South, none of these bear similarities with the essentially international nature of the litigation launched by the children in Sachhi and the pending Portuguese Youth case.
III. Challenges of a substantive nature
A. Consideration of Extra-territorial emissions?
In the Portuguese Youth case- on the one hand, the claimants ask the Court to interpret the content of the respondent States; obligations under Articles 2 and 8 of the ECHR on the basis of the 2015 Paris Agreement’s temperature target (Article 2, Paris Agreement) and the notion of Parties’ “highest possible ambition” (Article 4.3, Paris Agreement). On the other hand, they also seek to ask the Court consider respondent States’ downstream or non-territorial emissions (eg. where fossil fuels originate from their jurisdictions, but are used outside their jurisdictions) in assessing their violations. They argue this despite the fact that under UNFCCC and Paris Agreement do not mandatorily require that such emissions be attributed to the States concerned (See Decision 4/CMA.1). There is also jurisprudence from national courts within Europe that downstream emissions are not relevant climate change related considerations for activities such as oil-reserve exploration (Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy, Norway) and oil drilling (R v Surrey County Council, UK). How can the claimants reconcile their reliance on the Paris Agreement for some arguments, and a more expansive approach for emissions accounting not supported by the Paris Agreement for some other arguments in litigating the same human rights? And in any event, why would the ECtHR be willing to follow an approach of attributing emissions to countries that is not provided for by the Paris Agreement?
Here, it is noteworthy that the IACtHR in its 2017 Advisory Opinion, rejected Colombia’s view that the discharge of environmental treaty obligations in relation to a particular issue, would amount to a discharge of human rights obligations implicated by virtue of environmental harm related to that issue. Thus, the ECtHR could similarly hold that while the explicit requirements specified under the Paris Agreement serve as the baseline for considering whether rights have been violated, the Court cannot be oblivious to the link between the endangerment of human rights arising from European States’ export of fossil fuel for consumption abroad. There is also support for the reasonableness of accounting for downstream emissions in judicial decisions from other developed country parties. In Gloucester Resources case (Australia), a specialist environmental court relied on jurisprudence form other Australian courts as well as US courts to find that downstream emissions from the project in question were relevant considerations that the environmental impact assessment ought to have been considered. This was buttressed by reference to the soft expectation in Paris Agreement that developed country parties should “take the lead” in mitigation measures (Article 4.4).
B. Margin of Appreciation
Another issue which could prove extremely challenging to get past in climate change litigation, which will be especially difficult before an international court is the application of the ‘margin of appreciation’ doctrine. The margin of appreciation doctrine raises a “presumptive barrier which generally works for the state and against the individual rights-bearer” (Hilson, 2013). Surmounting this hurdle will require claimants to demonstrate, inter alia, that the ‘best available science’ is clear, that there are no technicalities which are beyond the court’s proper role to work out, and that on the basis of the this, the Court may pronounce on the details of climate mitigation measures to be undertaken by respondent States.
Lawyers on behalf of GLAN (the NGO, supporting the Portuguese Youth complaint) have argued, that the margin of appreciation doctrine should play a muted role in cases involving climate change. They argue that the ECtHR case law on margin of appreciation in relation to environmental issues has so far concerned domestic problems (eg. noise pollution in Hatton v UK) and thus not affect their case as climate change is a global problem requiring collective action from States. While the correctness of an argument such as this is yet to confirmed by courts, it is submitted that they might indeed be right on this point. The rationale behind the application of ‘margin of appreciation’ doctrine in environmental cases has been that the authorities of the State have a closer connection to the environmental issue at hand, and will be in a better position to redress it in light of its technical nuances and needs of the local community. However, this logic cannot be transposed to human rights impacts arising from climate change, a collective action problem in relation to which State authorities will predictably underestimate their ‘fair shares’ of emissions reductions (Crosland, Meyer & Wewerinke-Singh, 2017). In light of this it will have to be seen whether the ECtHR will follow Urgenda’s lead in suggesting that States’ emissions reduction commitments ought to be more ambitious in order to protect ECHR rights, or (albeit unlikely) even go further than Urgenda by prescribing the fair share in more concrete terms.
Climate Change has led to human rights courts being asked to pronounce legal propositions that it did not have to when it was confronted with other environmental problems which directly affect human rights. In their analysis of novel issues arising in the domestic context, Fisher, Scotford & Barritt describe climate change as ‘legally disruptive,’ in that, it requires courts to reconcile doctrines of, inter alia– planning law, administrative law and even property rights with newly emerging frames of legal imagination. It is argued that at the international level as well, particularly in the context of international human rights law, the descriptor ‘legally disruptive’ is apt. While the IACtHR once stood as the outlier, in terms of recognising a new kind of jurisdictional link, it has now been joined by the CRC (and presumably will be joined by other human rights treaty bodies). The legally disruptive nature of climate change invited domestic courts to re-think traditional legal doctrines and led to them recognising relaxed rules of standing (Urgenda case, Netherlands) and allowing rights to be invoked in advance of actual violations of fundamental freedoms (as was done in the Neubauer case, Germany). And now, at the international level, it has led to the recognition of a new kind of jurisdictional link.
Moreover, it is in the area of international human rights law that we may locate substantive obligations of a more onerous nature than elsewhere, in relation to climate change mitigation and adaptation. While States may cooperate and eventually achieve their respective commitments under Paris Agreement, the chances that their cumulative efforts lead to a world where the global average temperature increase is kept to below the 2 degree Celsius, let alone the 1.5 degree Celsius mark are limited (This has confirmed recently in the NDC Synthesis Report). Even if they ensure that the global temperature increase is below 2 degree Celsius (which possibility seems increasingly unlikely), millions of humans (especially those living in small island states, and LDCs) stand to be severely affected and lose their homes and livelihoods (See IPCC 1.5°C Special Report). In such a scenario, it would be farcical to say that the enjoyment of their basic human rights have not been impaired because States have complied with their climate change obligations. Moreover, the suggestion that ‘due diligence’ obligations under international human rights law cannot go beyond the standards accepted under 1992 UN Framework Convention on Climate Change, 1997 Kyoto Protocol and 2015 Paris Agreement– pursuant to ‘systemic integration’ (as argued by Boyle), is unsustainable. Article 31(3)(c) under the 1969 Vienna Convention on the Law of Treaties indeed allows for reference to “relevant rules of international law,” but it is preceded by Article 31(1) which requires “good faith” interpretation. Surely, in a situation of crisis that jeopardises individuals’ enjoyment of basic human rights, would it be a good faith interpretation to limit due diligence under international human rights law to require anything less than taking more ambitious climate action than status quo? I think not.
This article has highlighted the challenges involved in international litigation of issues arising out of insufficient climate change action by States, using international human rights law. Litigation before human rights treaty bodies are seemingly apt in bringing States that are not doing their fair share in addressing the collective action problem of climate change to account. Their appropriateness is heightened by impracticability of initiating domestic litigation in the responsible States, let alone the unpredictability in their prospect of success. In light of this, the recognition of an extra-territorial jurisdictional link that satisfies the admissibility criterion before international human rights tribunals open crucial doors for victims of climate change impacts. However, a different admissibility criterion, viz. the requirement of exhaustion of domestic remedies stands in the way of such victims. In this context, it needs to be stressed that avoiding a situation where the international tribunal becomes the first rather than the last resort, it is only one of the reasons underlying the requirement. Moreover, while it is understandable to apply the requirement to exhaust domestic remedies rather strictly for victims who are residents of the respondent State, its application to prevent international litigants (i.e. victims residing outside the respondent State) from moving international tribunals is questionable. The arguments for absolving international complainants, such as those in Sachhi and the Portuguese Youth cases, from exhausting domestic remedies stem from the idea of ensuring fairness to the litigants. Fairness runs through all substantive arguments from international human rights law in regards to State responsibility for insufficient climate change action. De Schutter (Special Rapporteur on Extreme Poverty and Human Rights) noted in his strongly worded 2019 report that climate change “represents an emergency without precedent and requires bold and creative thinking from the human rights community and a radically more robust, detailed and coordinated approach.” In this spirit, it is argued that litigation using international human rights law may help to ensure that States taking insufficient action are held responsible for not keeping within their fair share of emissions, in a manner that cannot be achieved through international climate change law as it stands today.
[*] Pranav Ganesan is a graduate from National Law Institute University, Bhopal and the University of Oxford. He is currently an Academic Fellow at the National Law University Delhi. Views expressed by him in this article are personal.
 CRC, CRC/C/88/D/104-108/2019 (8 October 2021).