By the Editorial Team 

▪

Impact of climate change on children and young adults

At the end of November 2020, international media[1] reported that the European Court of Human Rights (ECtHR) had ordered 33 European governments to respond to a landmark climate lawsuit lodged by four children and two young adults from Portugal – Duarte Agostinho and Others, no. 39371/20. The media pointed out that this could be the most important case ever tried by the European Court; it is the first occasion the Court has had the opportunity to grapple with climate change and its impact on individuals. The case was filed in September 2020 after Portugal recorded its hottest July in 90 years. It was initiated three years ago following the devasting forest fires in Portugal that killed more than 120 people in 2017. The ECtHR will be holding a hearing for this case on 27 September 2023.

The young applicants are being represented by British barristers, experts in environmental and climate change law, and supported by the London and Dublin based NGO “Global Legal Action Network” (GLAN).[2]  At the request of GLAN, some Editors of UNIO provided a (pro bono) legal opinion for that case concluding that the Portuguese judicial regime is not equipped with a mechanism that allows the prosecution of all the pursued/targeted countries and that any decision issued by a Portuguese court would have limited territorial scope.  

The cause of action is the fact that said States have repeatedly and objectively failed to comply with “environmental duties” ensuing from international acts to which they have bound themselves (and by which they are bound). In the applicants’ view, all of them have not complied with the obligation to contain greenhouse gas emissions and, therefore, do not prevent (limit or even avoid) the global warming and climate change and their impact particularly on the Applicants’ life and, in legal terms, in their juridical sphere.

Therefore, the applicants consider that some rights enshrined in the European Convention on Human Rights (ECHR) are being breached and they are suffering the ensuing damages in their legal sphere – embodied, above all, in their right to life. In fact, Applicants establish their court’s position in the fact that the effective protection of those in the most vulnerable countries in Europe (in which Portugal is included) can only be achieved if a territorial approach of jurisdiction is not adopted because of the variation in vulnerability and adaptative capacity to climate impacts across Europe. In order to support this premise, Applicants rely in the German Federal Constitutional Court reasoning (BVerfG, Order of the First Senate, 24^th March 2021 – BvR 2656/18[3]) in relation to the constitutional duty to protect health: “However, with regard to the interests protected under Art. 2(2) first sentence GG – the only relevant interests here – it cannot presently be ascertained that the state has violated its duty of protection with the reduction pathway specified until 2030, which is possibly still oriented towards a target of 2°C. It is not evident that the health consequences arising from 2°C global warming and from the associated climate change in Germany could not be alleviated by supplementary adaptation measures in a manner that would be sufficient under constitutional law“(paragraph 167).

The States – the EU 27 plus Norway, Russia, Switzerland, the UK, Turkey and Ukraine – were obliged to respond to the complaints of the plaintiffs, who say governments are moving too slowly to reduce the greenhouse gas emissions that are destabilising the climate. The ECtHR took the unusual step of expanding the scope of the case by asking the 33 governments to explain whether their failure to tackle global heating violates Article 3 of the ECHR, which protects the right not to be subjected to inhumane and degrading treatment – a point not even raised in the lawyers’ submission. The complaint sub judice is based on Articles 2 (right to life), 8 (right to respect for private and family life) and 14 (non-discrimination) of the ECHR and focuses on the fact that the Applicants are failing to achieve high levels of physical and mental well-being and are suffering the worst consequences of climate change.

In fact, as asserted by the Council of Europe Commissioner for Human Rights, living continuously in an unhealthy environment brought about by human intervention, for instance climate change, can lead to human rights’ violations and may jeopardise the right to life, private and family life or freedom from inhuman or degrading treatment.[4] In addition, in Corina Heri’s view,  although complaints related to pollution or environmental risks are usually heard under Articles 2 or 8 of the ECHR, “(…) that is not to say that related harms or risks thereof could not violate Article 3: there are undeniably ways in which climate change could lead to ‘actual bodily injury or intense physical or mental suffering’.” In this sense, Corina Heri goes on to highlight that “the case-law on feelings of fear and anxiety may be of relevance. (…) the applicants in Duarte Agostinho raised their fear of natural disasters such as forest fires as well as of the prospect of living in an increasingly hot climate throughout their lives. The Court has previously found (…) that a permanent state of anxiety and uncertainty about one’s future can violate Article 3, as can a sense or feeling of vulnerability.”[5] Indeed, the degrading treatment is linked to the increasingly felt “eco-anxiety” – a phenomenon whose various definitions are centred on chronic fear of environmental doom/mental distress or anxiety associated with worsening environmental conditions/anxiety felt in response to the ecological crisis –,[6] negatively affecting populations, especially the current generation.

Even though climate change has a universal impact, young generations are, in fact, particularly vulnerable in the face of possible irreversible damage caused by climate disruption,[7] compared to other demographic groups. Also, as outlined in Amnesty International’s Amicus Brief and others on the case at hand, there are lessons to be drawn from S.L. and J.L. v. Croatia – a case ruled by the ECtHR, in which the Court’s findings reinforce the prominence of children’s rights, as we can observe in the following recitals of the judgment in question: “in the Court’s view, all the allegations […]raised the issue of compliance with the relevant constitutional obligation of the State to protect children (…) in accordance with the principle of the best interests of the child” [8] and “the Court has also held that where children are involved, their best interests must be taken into account […] [it] reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance. Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight […] the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere […].”[9]

The scope of children’s rights is significant when addressing the issue of degrading treatment, considering that in Duarte Agostinho and Others the specific vulnerability of young generations to the risks posed by climate change is emphasised. In turn, if States do not fulfil their positive obligations to mitigate this situation – namely, reducing emissions, banning the export of fossil fuels, offsetting their emissions with the import of goods, and restricting the release of emissions abroad – the current generation will continue to suffer the consequences of this scenario.

In this sense, it is not so much about knowing and judicially ascertaining the damage ensuing from the actions or lack thereof of a particular State, but rather about what all States should do and what the scope of their global responsibility is. In other words, what matters is to what extent the signatory States of the ECHR had the duty or the responsibility to protect the lives of citizens of other signatory States of said Convention against the impact of greenhouse gas emissions. And the fact is that, outside the strict scope of environmental law, (public) international law itself has developed legal concepts that allow for actions (namely, court actions) with an analogous, shall we say, “humanitarian/transnational” ratio. Consider, for instance, the right to intervene for humanitarian reasons. Or, in a more distant and radical logic, the enshrinement of “crimes against humanity”.

Despite the obstacle posed by States’ sovereignty as recognised by the international community (which prevents the recognition of jurisdictional remedies or mechanisms exercised transnationally for the defence of global interests related to human rights – such as environmental issues), the fact is that that path is not only necessary, but also that its first steps, in specific domains, have already started being taken (albeit exceptionally).

However, in Portugal, jurisdictional mechanisms that can be individually or collectively deployable for the cross-border protection of rights stemming from the breach of environmental rights that forego the mediation of the States in question – that is, that which caused the environmental damage and that where the damage was suffered/felt – are still not available.

Thus, assuming that all the States at issue do not act in conformity with the objectives defined in international rules to which they have regularly adhered – all of them being, therefore, parties to those multilateral international law acts – and admitting their non-compliance (at least by omission/inaction) in failing to adopt effective environmental measures aimed at guaranteeing the right to life, the goal is to bring an action against the breach of human/fundamental rights that is attributable to those States.

Following this line of thought, what is at stake – in the context of formulating the cause of action and the corresponding claim – is not a strict and direct breach of international environmental protection law, but rather a potential breach of first generation/dimension human/fundamental rights, which form part of the essential core of protection of humans as such – in particular, the right to life – as a result of the inaction of the signatory States of the ECHR.

---

[1] “European states ordered to respond to youth activists’ climate lawsuit”, The Guardian – Jonathan Watts, Access August 5, 2023, https://www.theguardian.com/environment/2020/nov/30/european-states-ordered-respond-youth-activists-climate-lawsuit.

[2] “Youth4ClimateJustice”, GLAN, Access August 5, 2023, https://youth4climatejustice.org/.

[3] ECLI:DE:BVerfG:2021:rs20210324.1bvr265618, available at https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2021/03/rs20210324_1bvr265618en.html [access: 19.9.2023].

[4] Council of Europe, Third party intervention by the Council of Europe Commissioner for Human Rights under Article 36, paragraph 3, of the European Convention on Human Rights – Application No. 39371/20 – Cláudia DUARTE AGOSTINHO and others v. Portugal and 32 other States, Strasbourg, 5 May 2021, 2.

[5] Corina Heri, “The ECtHR’s pending climate change case: what’s ill-treatment got to do with it?”, EJIL:Talk! – Blog of the European Journal of International Law, December 22, 2020. Accessed August 8, 2023, https://www.ejiltalk.org/the-ecthrs-pending-climate-change-case-whats-ill-treatment-got-to-do-with-it/.

[6] Yumiko Coffey, et al., “Understanding eco-anxiety: a systematic scoping review of current literature and identified knowledge gaps”, The Journal of Climate Change and Health, vol. 3 (2021): 1. DOI:https://doi.org/10.1016/j.joclim.2021.100047

[7] “Taken as a whole, no group is more vulnerable to environmental harm than children (persons under the age of 18), who make up 30 per cent of the world’s population. Environmental harm has especially severe effects on children under the age of 5. Of the 5.9 million deaths of children under the age of 5 in 2015, the World Health Organization (WHO) estimates that more than one quarter – more than 1.5 million deaths – could have been prevented through the reduction of environmental risks (…) Childhood exposure to pollutants and other toxic substances also contributes to disabilities, diseases and premature mortality in adulthood.” See John H. Knox, “Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment”, Human Rights Council, 24 January 2018, A/HRC/37/58, 5.

[8] Judgment of the Court in S. L. and J. L. v. Croatia, 7 May 2015, Application no. 13712/11, recital 87.

[9] Judgment of the Court in S. L. and J. L. v. Croatia, recital 62.

Picture credits: Photo by Luis del Ru00edo on Pexels.com.