Climate Change in Strasbourg

This is a summary of a webinar discussing three recent climate change cases decided by the European Court of Human Rights. The cases involve the acknowledgement that climate change can affect human rights and the positive obligations of states in this regard. The first case, Carème vs. France, was declared inadmissible due to the lack of relevant links between the applicant and the affected area. The second case, Duarte Agostinho and others, also declared inadmissible, focused on the cross-border element and domestic remedies. The third case, Klima Seniorinnen and others vs. Switzerland, resulted in a violation of the European Convention on Human Rights and recognized the legal standing of an association representing elderly women affected by heatwaves caused by climate change. These cases have significant implications for climate law and policy, and the webinar aims to discuss their impact and place them in the wider context of environmental law and litigation. I see all three speakers. Welcome. Ola, Margarita, and Gerry, can you tell us a little bit about each one by one, shall we? Ola first, just test your sound, please. Can you hear me? Yes, perfect. Thank you. And Margarita? Good afternoon, all. Great. Works well. And Gerry? Hi, everyone. Nice to see you all. Perfect. Thanks. That works. And to everyone who is already in, we will start in one minute, exactly at 3. All right. Welcome, everyone. Welcome to this special webinar, Climate in Strasbourg, the Recent Cases of the European Court of Human Rights, which is organized jointly by the ECHR blog and the Netherlands Institute of Human Rights at Utrecht University in the Netherlands. And it's a pleasure to see more and more people coming in today for our webinar. My name is Antoine Buysse. I'm a professor of human rights here at Utrecht University and also one of the editors of the ECHR blog. And I have organized this event together with my fellow blog editor and colleague, Dr. Koestremi Streffi. Hello, everyone. To the speakers and audience, my name is Koestremi Streffi. I'm one of the co-organizers of the event. And together with Antoine, we work at the Netherlands Institute of Human Rights with Utrecht University as assistant professor and co-editor of the ECHR blog. I specialize more generally on the European Convention on Human Rights and its relationship with international law, broadly speaking. A pleasure to host this event today. Thank you, Koestremi. And just to welcome everyone in the audience as well and our speakers. And as you all know, the direct reason for this kind of rapid response webinar is to provide you with some first responses by experts in the field on the three seminal climate change cases decided by the European Court of Human Rights last week. And they've already been dubbed by media and commentators as either long-awaited, much-anticipated, historic, or even disappointing. And I'm sure there will be for a long time to come some of the most debated and influential rulings coming from Strasbourg. So in any event, these are cases in which the court has taken the principle step for the first time to explicitly acknowledge the fact that climate change can affect human rights and determine that this means that states also have certain positive obligations in this respect. And of course, last week's rulings also add to all kinds of debates in climate law and policy on mitigation versus adaptation and how the courts' recent judgments and decisions with their emphasis mostly on mitigation will affect these debates as well. So something to look into today. And indeed, our purpose for today is not only to discuss the judgments and the decisions from the ECHR angle, but also to place them more widely in developments around strategic litigation on climate change within the wider context also of environmental law and also litigation for many domestic and international courts ongoing and future around the globe. So today we will, for those who have missed it, very concisely introduce the three cases and then we'll give the floor to our three expert speakers who have joined us for this webinar. Many thanks to all three of you in advance. And then turn to some debate and Q&A for everyone who's attending through the chat. So first, the three cases. There were actually two decisions, as you may know, and one judgment. And for the bigger picture, six other cases had been adjourned by the court pending rulings in these cases of last week. So for sure, there will be more climate coming from Strasbourg in the coming months. And so I will really shortly explain the cases of Carême and Duarte Agostinho and others, and my colleague Christian Mestreffi will go into the Climacenurine case and then we'll give the floor to our speakers. So just very shortly, the first case, Carême, the least noticed and maybe also the least notable of the three was the decision in Carême versus France. Carême was a former mayor, is a former mayor of a coastal town in northwestern France, Grand Saint. And this case was declared inadmissible, and so this applicant complained under the right to life of Article 2 and the right to respect for private life in their home under Article 8 about basically insufficient mitigation measures being taken against flooding of coastal areas, as well as the lack of adaptation of infrastructure by France in his complaint. And he both lodged his complaint in his personal capacity, but also on behalf of his former municipality of which he had been the mayor, Grand Saint itself. That's not very surprising maybe, but in line with existing cases, the court held that state authorities, including municipalities, cannot complain under the convention and regarding his own personal situation, the applicant no longer lived in that town, but is now a member of the European Parliament and lives in Brussels, so clearly outside France, although still francophone territory. And building on what it said in the Climacenurine case, but we will hear a bit more in a bit on the victim status aspect, the grand chamber held in this case that Carême had, and I quote, no relevant links with Grand Saint, and that moreover, he currently doesn't live in France, so the court does not consider that for the purposes of any potentially relevant aspect of Article 8, private life, family, or home, he can claim to have a victim status. So put differently, feeling anxiety about the effects of climate change is not enough. So that was the first case. And then the second one is what Agostinho and others, this was also known, is also known as the children's climate case, probably the most publicized one of the three, and no doubt we will hear more about that from one of our speakers. It was brought by a group of Portuguese children and teenagers against no less than 33 state parties of the European Convention for causing dangers to their life and health, amongst others because of the increase in forest fires in Portugal as a result of climate change, under a number of ECHR articles. This case was also declared inadmissible, and the grand chamber basically rejected this case on two different grounds, one related to the cross-border element and one to domestic remedies. Now maybe the most interesting one, because it was also the bravest attempt one might say, was the one relating to the cross-border element. This was brought, as I said, against more than 30 different states beyond Portugal, and the court there really stuck to its quite traditional line on the territoriality of jurisdiction and didn't go beyond this for the special theme issue context of climate change. And it really distinguished climate change from more local environmental harm across borders, and maybe one of our speakers will also say more on this, but climate change cases in the court view are not so special to warrant really an extension of extraterritorial jurisdiction as the applicants in this case tried to argue. So yes, said the court, climate change obviously has negative effects across borders, it's even a truly existential problem for mankind, and each state bears its share of responsibility, but the court said we do reject the applicant's submissions because, just because they are arguing that their interests were negatively affected, that doesn't bring their situation within the jurisdiction of all these other states. And the court there adds having such a broad criterion would mean an unlimited expansion of states' extraterritorial jurisdiction towards people practically anywhere in the world. So a clear no on that ground in the end coming from the grand chamber, which makes the whole large part of the complaint inadmissible against all the other states beyond Portugal. And then finally, in respect of Portugal itself, the domestic remedies had not been exhausted, so then the court simply applied standing case law and rejected the case also on that ground. So what started as a wildfire and simply kind of petered out, if you allow me to use that metaphor, it was an interesting legal gamble, and again we'll hopefully hear more from one of the speakers, but the outcome of this case was maybe not entirely surprising for some observers of the court. So two cases down literally, and one to go, from which the real innovation came actually, and for that I hand over the floor to my colleague Kustin Mistraffi. Thank you very much. So indeed the third case, and the one that resulted with violation of the European Convention on Human Rights, is the now landmark judgment of Klima Seniorinen and others versus Switzerland. This was a case brought by two types of applications. First by an association known as Klima Seniorinen, an association representing over 2,000 elderly women, and four individual applicants, also elderly women in this case. The case was about the rise of heat waves, but again the issue here was connected to the idea of climate change, so the heat waves, the rise of heat waves as a result of climate change, and how they affect the right to private life and the right to life of applicants. The applicants here complained that the respondent state, in this case Switzerland, has failed to comply with its positive obligations to protect the right to life, the right to private life, so Article 2 and 8, as well as the right of access to a court under Article 6 of the European Convention on Human Rights, and the right to an effective remedy in relation to Article 13. The case was, as my colleague Anton Basse mentioned, was joined with two other cases, so the Chamber relinquished its jurisdiction in favor of Grand Chamber in 2022, and the Grand Chamber in the case found that the association has a legal standing. This is something that we already have heard some reactions from scholars, and we expect that today will be part of a discussion as well on the type of possible innovation that can be associated with this finding. So, the court here focused on locus standi, not finding that they had a victim status, but that they had the locus standi and therefore could represent the applicants. With regards to four individual applicants, the court found that they did not meet the high threshold required to establish the victim status. As a result, the court then found only violation with regards to association, and this was only with respect to Article 6 and 8, so the right of access to a court and right to private life, even though, and as we hope it will be touched upon, the findings with regard to positive obligations on the right to private life were connected with obligations that are similar, if not identical, with regards to the right to life. So, also some interesting take from the court in that regard. The court did not find it necessary to examine the applicability of Article 2, as I mentioned, even though it is explicitly mentioned with regards to its relationship with Article 8 on positive obligations, and the court did not find it necessary to examine the separate complaints under Article 13. The findings of the court in this case indeed are the ones that have created hope that more climate change cases can be brought successfully before the court, and also that these might have a wider impact with regards to a number of climate cases that we see in national, regional, and international court more recently. So, today, as was mentioned before, we have a stellar panel, all experts in the relationship of environment and human rights, with both academic background but also with expertise in practice. So, we're very pleased to have Gary Liston from the Global Legal Action Network, Ola Pedersen from Aarhus University, and Margaret Wethering-Singh from the University of Amsterdam. I'll just briefly introduce the speakers, even though, as I assume most participants today follow climate change and human rights, you would know them very well, but nevertheless, allow me to start with Gary first, who is a senior lawyer with the Global Legal Action Network, an organization and a team that has played a major role to bring the case of the children's climate case, and also, I would say, raise awareness about the relationship between human rights and climate change, because, as we will discuss, I hope, today, each case has complemented not only each other, but also in raising awareness about the importance of climate change and human rights. So, he works on climate cases with GLAN, but also has worked in other capacities on similar issues, for example, has assisted in drafting a rather novel law in Irish parliament on the fossil fuel divestment bill, which requires Ireland's sovereign wealth fund to divest from fossil fuels. He's also involved in a number of other human rights issues with GLAN on forced labor, torture, trade, and so on, and is a PhD researcher with the Irish Center for Human Rights. Next is Professor Ola Pettersson, Professor of Environmental Law at Aarhus University, since 2021, an expert in environmental regulation, energy law, and the European Convention on Human Rights. Prior to joining Aarhus, Professor Pettersson was at Newcastle Law School for over 14 years, and has published extensively in his area of expertise. He has been also very active, also, with these cases that we will discuss today, so very pleased to have both of you. And last but not least, Margaret Haring-Singh, Associate Professor of Sustainability Law at the University of Amsterdam. Prior to that, Margaret worked at Leiden University and the South Pacific School of Law in Vanuatu. Her work focuses on the role of law in transitioning to sustainable societies, with a special focus on human rights and social justice. She has published extensively, and is part of some of the leading journals in the field of international law, but also with regards to sustainability law and human rights. She's also involved, in some respect, with regards to some litigations, and also outside Europe, so very much looking forward to hear your experience and thoughts on the wider impact, possibly, of this judgment. By coincidence, today, she has to leave us earlier, unsurprisingly, to deal with a very relevant case, as she's heading to Barbados for an Inter-American Court of Human Rights climate hearing. This is also the reason why, with the permission of speakers, we will try to collect some initial questions for Margaret shortly after the presentation. But just some housekeeping rules. So, we invite every participant, as you have kindly done already, to keep the cameras off, and ideally, to raise your questions in the chat after each speaker has presented. Each speaker has been asked to speak for about eight minutes. We will not try to be very religious with the minutes. It can go to nine or seven, but the idea is to have a short pitch, a short reaction on these three cases. We'll start with Gary first, who will bring the petitioner's perspective, and perhaps connect with the three cases, and would like to hear your views on what struck you in these cases. Then we'll continue with Ole, bringing the environmental dimension to these cases, and perhaps see whether there are particular novelties in these three climate change cases compared to other types of environmental law cases we have had so far. But also, then, we'll very much like to hear your other takes on these cases. And last but not least, Margaret, we very much hope to hear from you on the wider regional, perhaps global as well, impact of this case, of these cases in general. And after the presentations, I will continue with moderating the Q&A, and will open the floor for the audience. For now, if you don't mind, in the same order of presentation, we'll start with Gary, then continue with Ole and Margaret. So, Gary, the virtual floor is yours. Thanks, Kostrim, and thanks very much for the opportunity to join you today. Very, very grateful. I thought, just given the time allotted, I would go into a little bit of depth, maybe on just one issue in the Duarte Agostinho case, and then flag some other issues in all the cases for possible discussion in the Q&A. So, I've decided to zoom in just a bit on the court's approach to extraterritorial jurisdiction, and to look at it relative to one of our main legal objectives in bringing a case against multiple states. And this objective was really quite straightforward. It was to try to encourage the courts to interpret states' obligations on climate change in a way that's capable of protecting those in the most vulnerable parts of Europe, and I guess, by extension, of the world. And so, we argued that the existence of an extraterritorial obligation to mitigate climate change was necessary to ensure that this effect. And our basis for this particular argument was that, as the IPCC has pointed out, there is a variation both in the vulnerability to climate impacts and in the adaptive capacity of countries across Europe. And the IPCC has also said that countries in the Mediterranean, which includes Portugal, face hard limits to adaptation above 1.5 degrees. And so, to demonstrate how this variation could leave applicants, like the ETH applicants in this case, within a vacuum of protection, we highlighted the decision of Germany's federal constitution, of course, in the Neubauer climate case, which people might be familiar with. And in that case, the federal constitution, of course, held that it was legitimate for Germany to align its emissions targets to a two-degree temperature goal on the basis that, at least in the court's view, Germany could adopt adaptation measures to protect against impacts at this level of warming. And in that case, there were also a group of complainants from Bangladesh and Nepal, and in relation to those particular complainants, the federal constitution, of course, held that Germany could, in principle, owe extraterritorial obligations under its constitution to protect these individuals, but it held that that obligation ought to apply in a different way to how it applies to people in Germany, essentially because the state can protect its population within Germany through a combination of adaptation measures and efforts to reduce emissions, whereas it cannot implement adaptation measures in another country. It said that the adoption of adaptation measures in Bangladesh and Nepal was essentially, in its words, the task of those countries. But what the court didn't do was ask whether it would be possible for Bangladesh and Nepal and, of course, other more vulnerable countries to actually adapt to impacts of global warming at two degrees. I guess anyone familiar with the kind of impacts that South Asia has been experiencing, even at current levels of warming around 1.1, 1.2 degrees, will probably know the answer to that question. So, we argued that this decision demonstrated how the applicants could end up caught in a vacuum of protection in Europe and, therefore, the need to recognise an extraterritorial obligation to mitigate climate change in favour of those in the most vulnerable countries. Now, the force of this argument diminishes when the broader existential threat of the climate crisis is kept in view, because, after all, if we cross the various catastrophic tipping points in the climate system, and we're currently on the brink of five of them, this will make the planet essentially uninhabitable and, by definition, no country can adapt to this. And it's clear from the Strasbourg Grand Chamber's ruling in both Clima Signorina and Duarte that, unlike the German federal constitution, of course, it did have this broader existential threat in view. I think, Antoine, you mentioned in part of the ruling in Duarte on extraterritorial obligations, it stated that the problem of climate change is truly existential, of a truly existential nature for humankind. And, in essence, when you read the rulings in Clima Signorina and Duarte side by side, the court's response to our vacuum of protection point is to say that essentially every state has to pursue emissions reductions aligned with 1.5 degrees and, therefore, there will be no vacuum of protection. So, while Strasbourg has taken a narrower position on the existence, per se, of an extraterritorial obligation compared to Karl Schrug, the approach of the Grand Chamber in Strasbourg, while obviously not the one that we were hoping for, has the effect of creating a higher level of protection for persons, say, living in Portugal from emissions of a country like Germany, for example. Now, of course, it is important to point out that the Strasbourg ruling closes the door on claims under the Convention for a remedy for loss and damage against a non-territorial state. And, as for the effects of this as a precedent in other cases, raising issues of loss and damages before other, particularly international courts, I hope it'll be relevant in those other courts' considerations that the applicants in Duarte didn't seek to establish any entitlement to compensation or to a remedy in damages. But we shall see. And then I'll just finish by mentioning, as I said, I'll do some other brief points that I think are particularly notable about the rulings. Staying firstly with the Duarte-Agostinho ruling, I'm probably most disappointed that the Court didn't engage with our argument as to why the remedies at the domestic level, even in the successful climate cases, are ineffective. We argued that if every country were to follow, say, the standard set by the Dutch Supreme Court in the Urgenda case, we'd still end up with a catastrophic level of warming. And I think, although I am biased, the Court could have acknowledged at least that the Dutch government, or indeed no respondent state, actually contested this point, and it could even have just told us that we ought to have gone and made that argument at the domestic level. But yes, I'm disappointed that it didn't engage with it. But then turning to the Clima-Sina-Rina ruling, I think it's hugely significant that the Court has determined that states must adopt science-based 1.5-degree compatible targets, and in a very prescriptive way. Given that we are on the brink of catastrophe, I think the Court probably could have been a bit more explicit about the reductions that need to be achieved this particular decade, rather than by mid-century, but still can be extrapolated from the principles set out by the Court, what needs to be done this decade. And lastly, I think it's hugely significant that the Court has explicitly stated that states must take measures to limit their contributions to emissions which are released outside their borders, including through their imports of emissions-intensive goods produced elsewhere. And actually, Switzerland's emissions of this kind are greater than its territorial emissions. So that's an indication of the significance of that ruling. So yeah, obviously, much more to say. But as I mentioned, hopefully we can delve into some of the other issues in more detail in the Q&A. So thanks very much. Thank you very much, Gary Lisson. And now the floor is to Professor Beddarsdottir, the floor is yours. Thank you, Antoine and Kustrim. So I think a central challenge for the Grand Chamber, and by extension of that, the Court in general, in these type of cases, but particular here, is that of balance. And in the three cases before the Grand Chamber, the issue of balance exerts itself between, on the one hand, wanting to accommodate one of the most significant collective action problems of modern times against maintaining fidelity to the Convention and its intended scope. I think this balance challenge, if I can call it that, obviously presents itself differently in the three cases. So in Duarte, it was primarily around, as we've heard, jurisdiction and exhaustion of domestic remedies, or failure to do that. In Kawane, it was around the victim status. And in Klima Sinjarunin, it was around standing and, in light of finding a violation, the obligations or the positive obligations that ought to emerge out of that. Now, one central vehicle for the Court, if I can call it that, in striking that balance was the Court's existing case law, or the environmental law doctrine. This is a well-established body of case law that now is around three decades old. It is well-developed and gives rise to a rich case law that gives rise, in turn, to a number of positive obligations. These positive obligations have a nature of a due diligence obligation that a state is subject to when it faces serious environmental risk. The obligations entail the duty to put in place regulatory structures subject to the margin of appreciation and within the principle of subsidiarity and, in turn, the Court's supervisory jurisdiction. In short, covering a lot of ground here, as I said, three decades, these obligations are based on a mixture of international environmental law and, depending on the responding state, European Union environmental law. The baseline of these due diligence obligations is not overly onerous. Now, in light of this vehicle for exercising the balance, I want to push back a little bit on the claim that's made in a couple of contexts that clima seniori is groundbreaking and revolutionary. In fact, I think it was largely expected. Now, having said that, I think there are still some notable developments, add-ons, if you like, to the existing case law. This is what we could perhaps call climate add-ons to the existing environmental doctrine. Now, these add-ons largely stem from what the Court, or the Grand Chamber, sorry, terms the exceptional circumstances of climate change, which the Court seemed very keen to include and give force to. These add-ons are, and I've identified six, but some of them overlap and we may have a debate about the extent of them. But first of all, it relates to standing for associations, as we've already heard about. In the context of clima seniori, here a driver for that in the Court's environmental case law coming to the fore in clima seniori is, of course, the Aarhus Convention. Even though I think the Grand Chamber arguably goes further in terms of prescribing the obligation, that is necessarily the case in the Aarhus Convention. The second climate add-on is we have now a degree of clarity in respect to the positive obligations that emerged in the context of climate change. That is, the detail of the due diligence obligations, which has previously been quite vague, is now spelled out in detail. This is, and I won't go through it in detail, we may be able to return to this, but if you want to dive into it as you sit here, it is paragraph 550 of the clima seniorian decision. The third significant add-on is the framing of this collective action problem in the context of intergenerational burden sharing. It's slightly less clear to me at this point what the legal and doctrinal consequences of this framing may be, or whether it's just rhetorical, but that is potentially significant. The fourth climate add-on is, as the call quite clearly spells out, climate change is exclusively not a political issue, but a legal one. Now again, I think we can find support for that in the environmental jurisprudence, but it's quite clear that the Grand Chamber identifies, or rather decides, that there is no political doctrine question here as we see it in other constitutional forms of adjudication. Fifthly, the Grand Chamber also spells out that each responding state has responsibility for its own emissions, and as Gary hinted at, this potentially also includes extra territorial emissions. That is, in other words, the Grand Chamber quite clearly rejects the drop in the ocean response to climate change, which of course is quite central in the European context, where all things being equal, our European emissions are not overly significant on a global scale. The sixth and final climate change add-on, which is worth noting, is the drilling into the margin of appreciation and perhaps the splitting of the margin of appreciation in the context of climate change. First of all, the Grand Chamber says that the margin of appreciation becomes narrow when it comes to actually deciding whether climate change ought to be regulated or not. It's quite clear that there is an obligation to engage with this existential risk. On the other hand, on the second track, the margin of appreciation is wide when it comes to the responding state's responsibility to actually define how it responds to that. Now, again, the obligations in PARA 550 goes through the obligation to establish targets and timelines, in other words, the form of the obligation. But it's fascinating that there is perhaps a tendency to split the approach to the margin of appreciation here. So those are the six, I think, significant developments that make climate scenarios significantly stand out for the existing doctrine or case law on environmental law. Two final points I think are worth highlighting in this is, first of all, in a broader context. I think we have to be alert to and we have to recall the relatively unique, if not special, circumstances of Switzerland, insofar as Switzerland was obviously outside the legal scope of the European Union, and there was a quite detailed legislative vacuum by nature of the failure to adopt particular measures. It's not clear that that particular vacuum will emerge in other European states, but I suppose we can get a sense of that in some of the six remaining cases, potentially. The final point to bear in mind, and this goes to what Jerry mentioned as well, although the positive obligations in cleanest engineering go into detail, it's quite clear that they still don't, in a sense, map on to the scientific need for action. There is still a gap between the Para 550 obligations and, in other words, what the scientists tell us is needed. So the point here is then that the obligation to comply with the European Convention on Human Rights and Climate Change still does effectively not necessarily protect human rights to be prevented from climate change impacts, because then further action needs to be taken. That's all. Thank you very much, Ole. Margarita, the floor is yours. Thank you very much. It's a pleasure to be here. I'll speak to two features of these decisions which are particularly significant in the global landscape of climate litigation. I won't dwell so much on the domestic cases, because I think, Ole, you have actually in your presentation already identified the key issues that are most relevant to domestic climate litigation, including the dismissal of some potential defences which have been invoked by defending states, mainly in domestic cases, and where litigants will find it helpful now to point out especially the Klima-Sinjurina case. So I'll focus on international litigation or climate litigation before regional and international courts and tribunals and bodies. And then I suppose particularly, what is particularly timely are the advisory proceedings that are pending before the international tribunals of the sea, inter-American coalition rights and the international court of justice. And so a question I think that many of us are asking ourselves is, how will these rulings influence the potential outcomes of these advisory proceedings? And so it's on this exact question that I would like to offer some thoughts. And this is very much kind of high level big picture, because of course, there's a lot of details and fine grained analysis that we can engage in. But I'll kind of zoom out and take a bit of a helicopter view. So in the domestic litigation landscape, of course, a question that comes up again and again is the political question doctrine of separation of powers, what is the role of the court in addressing this whole problem? And then we've seen extreme positions in some cases where governments, sometimes judges go along with that, actually say that the courts have no role to play. This is a question of politics. And then we've seen also the courts rejecting those arguments and affirming the role of the judiciary in actually addressing these questions. And of course, the devil is always in detail as to how far a court can go, how specific rulings can be. And here we see, I think also, this is probably the most criticised question, part of the Klima-Sinjavina case, where you have a ruling on the merits, where the court can be. And here we see, I think also, this is probably the most criticised question, part of the Klima-Sinjavina case, where you have a ruling on the merits, where the court will be criticised for going too far as well as for not going far enough, depending on the perspective. And so in international litigation, so to say, there's not an exact equivalent of that question, but resembling these debates is the question of the international climate change regime and the role of the international climate change regime. So the argument of states and other actors that are the least enthusiastic about these cases or these proceedings goes like, states have agreed to address climate change through the UNFCCC and the Paris Agreement. The question is being negotiated within that framework. And so the court has essentially no role to play. It is a political question, such as being dealt with within this regime. And then for this, this line of argument comes in different flavours and variations. Broadly speaking, there are probably two main variations of this argument. The first is the kind of more extreme one, where it said that the UNFCCC and Kyoto and the Paris Agreement constitute lax specialis, a special law that excludes the applicability of any other law, including human rights law. So the human rights law cannot even be considered. That is a really strong kind of extreme position. And then a variation is to say that other laws may be considered, may potentially be applicable. It's fine to look at the European Convention of Human Rights or the American Convention or the International Covenant on Civil and Political Rights or the Convention on Law of the Sea or the Convention on Biodiversity. That's all fine. But these instruments must be interpreted in light of the UNFCCC and Paris. And then the argument is made in such a way that essentially the effect of that exercise of interpretation is that these instruments are then substituted by the UNFCCC and Paris. So we see this argument being made in the proceedings before ITLOS, the ICJ, and again we've seen it in human rights, before human rights bodies as well, before the Human Rights Committee by Australia. So there it is. Essentially the content of states, for example human rights obligations, is defined by the climate regime and so cannot go any further than what is contained in these treaties. And so how do these three European Convention of Human Rights rulings now influence this discussion? And here I think that the effect is essentially that this first line of argument or this first variation of this argument is now I think much less plausible than it was before. Because the court is very clear about the applicability of the European Convention and the decision on this point is very well argued. So it makes it harder to pursue this line of argument. And I think after the 21st of May when ITLOS hands down its advisory opinion on climate change, that argument will be even harder to make because, fingers crossed, but it does seem very unlikely that ITLOS is going to come out with an opinion that says essentially it's all about UNFCCC and Paris. So then we have this confirmation about the applicability of other instruments and parts of international law from two different highly respected judicial bodies. Now the odd deviation of it, that is of course where it becomes really interesting and we can talk for many hours and go into the details as to what then exactly is the relationship, how do these different bodies of law influence each other's contents. And so here we see that the European Court of Human Rights' judgment on the UN is quite helpful in that it's clear that, again the kind of extreme version of this argument, that the content of the European Convention is completely coloured by the climate change regime to the extent that there are no separate obligations distillable. Also it doesn't fly. But then again here critics could argue that the court doesn't go very far in that specifying what the precise human rights obligations are because to an extent it is an affirmation of what already needs to be done under these treaties. But there is more to it and so that is again what deserves much more attention. But it's clear that there is more to it including the positive obligation to legislate and then the mentioning of carbon budget is there etc. But that is I think the most significant contribution when it comes to these very live questions in these pending cases. And then the other one I would like to mention is the question of extraterritorial obligations. So Gary thank you so much for already doing much of the groundwork in explaining what has actually come out there in Agostinho in particular. So I would just like to here make one simple argument which is that the decision on Agostinho is completely irrelevant for the advisory proceedings that are pending. Why? Because it's an admissibility decision. It's not and the court says it at several points in the decision. The court is not pronouncing on obligations or responsibility. It is merely deciding on admissibility and it does so as I think many of us think in a quite conservative way and really wanting to avoid any suggestion that cases like this will be entertained in the near future. But I think the most important point is it's procedural and in some commentary we can read now that the decision is being understood as the court disagreeing with the inter-American court's interpretation on extraterritorial obligations in the advisory opinion on human rights and environment and with the commitment rights of the child interpretation of the same in Saki versus Argentina. But if we read the position carefully actually the court just states that the pronouncements of these two bodies on this issue are irrelevant to what its own exercise because its own exercise is one on the article 35 of the convention and so these bodies are doing something different and so that cannot be used as a basis for arguing that the court must find here in favor of the applicants on this issue but it's not actually disagreeing with the substance at least that is how I read the judgment. And then again taking a step back it's useful to remind ourselves that the inter-American court in its advisory opinion actually was concerned with obligations. So that is a ruling that we have basically from an international court on extraterritorial obligations relating to climate change and then this was affirmed by the committee on the rights of the child giving it global scope in a decision that ultimately resulted in a finding of no admissibility but that was based on as we all know exhaustion of domestic remedies on this particular point the position was actually in favor of the applicants and so I would argue that this is still good law and we shouldn't attach too much weight or any weight as such to the ECHR's position in Agostinho on this particular very important point. I'll close here look forward to questions and comments. Thank you so much Margareta and to all the speakers for this very helpful comprehensive analysis of all the different aspects of admissibility merits and wider implications possibly of these important rulings of the European Court of Human Rights. Now the floor is open for questions from the audience. There is a section if you look on the top of the page you will see the Q&A where you can post the questions but if for whatever technical reasons you can't find it feel free to also put it on the chat. Margareta as I announced earlier will have to leave around 4 p.m. so if you have a question for her already please write it now. And Margareta while we wait for more questions to come in the chat can I then start off. One of the things you mentioned is that some of it doesn't matter so much for other jurisdictions and types of courts but there is an interesting linkage it seems in these decisions and judgments between admissibility and the type of remedies the court can then order especially in the clima senior in where it's not the individuals that are having their case declared admissible but the association based on the broader overall societal impact which also means that the remedies as a result I would say are of a different type. So how do you see that? Do you see that linkage also emerging elsewhere in admissibility rules of courts related to what they can then order at the end or is it just exceptional in this case? That's a really great question and I think here there is an innovation as far as I can see in the global landscape and so the impact has yet to be assessed. What I think is important also to bear in mind is that even though the applicants all submitted evidence of impact that they suffered as a result of climate change still the decision, the claims, all three of them were framed in a forward-looking way. They were about preventing future harm and so as such the court really hasn't been asked even to think about reparations or compensation or these forms of redress. It's really more about again policy preventing harm. So in that sense this creative way of finding the Klima-Sinjurinen case to be admissible through the standing of the association aligns with that and that is also I think discernible from the court's justification of that finding that it is about even the court mentions future generations and how they do not have much of a say in policy making etc. So we have to see how that perhaps shapes other decisions and also it remains an open-ended question how the court would deal with actual claims that actually ask for redress for harm. We have another question also for you Margaretha. We have this from our colleague from Utrecht University Professor Lan Guyen and I had the same question in my mind so I'm glad that Lan raised this. So she is interested in hearing on the interaction between human rights law and other areas of law before international courts in the aftermath of the Klima-Sinjurinen ruling and she's asking what impact if any do you think or expect the ECHR judgment will have on how ITLOS and the ICJ will address human rights claims in their respective advisory proceedings especially in light of the fact that it is a regional human rights court. Perhaps if I may add I'd be very curious to hear your thoughts on whether you could expect some kind of further fragmentation of international law in this field where different bodies may end up also maybe even unconsciously leading to contradictory findings that could make it even difficult for states to understand what practically the obligations are broadly speaking when it comes to addressing climate change. Thank you. Thank you so much and these are really great questions. When it comes to the impact on ITLOS it's probably too late although technically speaking it's too late for this to feed into the ITLOS decision. Then again of course the judges will all be very much aware as well as the legal assistants will be very much aware of this ruling and I think that broadly speaking it will probably bolster their confidence that they're on the right track when they deliver an opinion that confirms some of these basic points about the applicability of UNCLOS to the climate crisis and greenhouse gas emissions amounting to marine pollution and things like that. The impact will be hard to trace probably and that's different in the ICJ proceedings which are of course very much in full swing and so comments from states and international organizations are due on or by the 24th of June and so I'd be very surprised if you wouldn't see a good number of those comments citing the decision and especially the judgment in multiple different ways, probably contradictory ways and so that's going to be interesting to see those different interpretations. But when it comes to the overall impact I think the key point is the applicability of human rights as such and so the rejection of this strong ex specialis argument and then as to the question whether there could be increased fragmentation as a result of regional variation between pronouncements of regional bodies. Here I'm quite optimistic because one I think it has a unifying effect in that it brings the whole European continent in a under one umbrella of one ruling. We have one authoritative interpretation of state obligations under the ECHR whereas previously it was just a couple of domestic judgments that we had and there was quite a lot of variation between those judgments and this judgment is also I think generic enough to say that it can be extrapolated to the whole world is a strong statement but at the same time it's hard to see any judicial bodies from other parts of the world strongly object to this ruling. It has some elements which are really fundamental and it's not specific enough to be as such I think really regionally specific but others may disagree with me on that and of course the proceedings before the Inter-Agricultural Court are also pending and here I think most of these bodies will strive I think for the most harmonious kind of interpretations that in order to not create problems to put it simply but at the same time they want to distinguish themselves in some ways and the European Court is doing that I think also now through its very narrow interpretation of some of the Article 35 I would argue and the Inter-American Court may want to distinguish itself by providing very progressive rulings for example on reparations which are actually before it as some of the questions that are that have been asked by the state requesting advisory opinion there and so it's going to be an ongoing dialogue I think and again optimistic about the level of sort of harmony or consistency coherence that can be achieved. Thank you very much Margaretha and I know you have to leave soon so whenever you you have to leave just we totally understand that you just exit the conversation. Thanks once again for being with us today. We have two more questions that I see on the chat. It's Christian Zauner asking on the Convention on the Rights of the Child so building on the Klima Senorina judgment which levers do you see within the UN Convention on the Rights of the Child especially after general comment number 26 before European country courts this with regards to the rights of future generations and then for Ole from we have a question just a moment country the full name here but the question is whether how do you read the considerations regarding the so-called Osman criterion mentioned in paragraph 513 so if one of you would like to respond to the question on the Convention on the Rights of the Child and then Ole also on the Osman criterion I'm not sure if this is fully sufficiently clear for you if it's not then you could also ask for further clarifications of course I'll certainly give it a go and I'll rapidly jump in to try and answer that question insofar as I'm not sure I can answer the other question about the Convention on the Rights of the Child so I'll happily swerve that over to Jerry afterwards but we'll see anyway on the application of Article 2 here I think one point to bear in mind in this is in the environmental cases the court has on occasions spelled out that and this is me paraphrasing there isn't a great deal of difference in terms of application and the positive obligations that emerge out of them in the context of the environment and that is why the court quite often goes on to either merge the application of Articles 2 and 8 in one assessment or focuses on Article 8 then to note in a couple of one well two liners that Article 2 is not relevant in that context as far as I didn't understand Article um what's the reference to 513 and I was just calling off the case here I suspect it's an indication then that in response to the point that individuals don't have standing in Clemency Union the court maybe want to hedge it hedge the restriction that is inherent in that and thus it doesn't rule out the chance that individuals may at some point in the future if there's a real and imminent risk have claims to Article 2 as well I that's my reading of it but uh yeah I may well be be wrong on that and I don't know if that answers the question but the main point is Articles 2 and 8 are in environmental cases for all intents and purposes treated and applied in similar manners so I don't know if I may jump in on that all I think that's indeed very important because the choice for Article 8 here because of it and the admissible part of the claim is by the association fits well the stretchy nature if I may say of Article 8 and indeed it would be a bit more difficult under Articles 2 and this is compared to most of the environmental law cases where it was still individuals right who brought the complaint yeah okay um Jared not sure if you want to add to any of the issues that all they already addressed um if if none of you feel comfortable to address some specific aspects then uh we don't uh yeah we can just move to other issues so no pressure I thought I'd say something brief about the convention and the rights of the child um the general comment of the uh the committee on the rights of the child was very helpful uh something that we um referenced extensively in our observations one of the things I thought was particularly helpful was how the um committee emphasized the obligations on states to achieve their fair share and that's not because we want courts to ultimately decide the very contested global justice question of what is any one state's equitable share of the required global reductions but it gets to the fundamental point uh that I think many climate cases are trying to get at which is that if states continue to cherry-pick self-serving interpretations of their fair share uh even of reductions aligned the stringent reductions aligned with the 1.5 degrees we will massively overshoot 1.5 degrees and that's the essential problem with the Paris agreement that it leaves huge effective discretion to state now where I would have some concern about the committee on the rights of child in a in any further case that might be taken uh uh to that committee following the the Saki case is that the committee did exactly the same on exhaustive domestic remedies as the grand chamber did in Duarte um the petitioners in that case and it's recorded actually in the in the decision of the committee in relation to both France and Germany they extensively outlined the shortcomings in the remedies um uh awarded in the domestic courts of France and Germany for example they emphasized that the French case of the century only the French courts only inquired as to whether France was doing enough to achieve its 20 2030 target but ignored the fact that on their evidence which is the same methodology that we relied on if all states pursued an equivalent ambition as France's 2030 target we'd end up with four degrees and this point was despite being referenced in the summary of the petitioner's arguments was completely omitted from the analysis of the effectiveness of the of the remedies in fact the committee referred to an absence of reasons um uh presented by the petitioners which wasn't quite a fair characterization of their their arguments so what we really need given that we are on the brink of five catastrophic tipping points is courts to really grapple with this fundamental issue of cherry-picking self-serving interpretations of the fair share hopefully the team of signorina judgment will be taken by domestic courts and other um uh international courts and bodies uh as a significant step forward um although as you pointed out ole you know they had in switzerland a bit of an outlier uh in the in the climate policies that switzerland has relative to other european countries um but yeah that remains to be seen i guess if if i may make a quick point on this which i think they are highlighting in clemency union because on the tail codes of sort of some of us or those of us who have in the past been a little bit critical of the way in which the court has liberally or quite happily borrowed from both other jurisdictions and other legal regimes be international environmental law eu environmental law in clemency union the grand chamber is obviously an alert to the inherent contingency there isn't all these legal regimes insofar as as margarita rightly pointed out it looks to the inter-american court it looks to some of the general commons and the u.n. human rights committees decisions and all that and then it says these are of course of a particular context that may not strictly speaking be relevant here and i think there's a fine tuning of the environmental law doctrine which we haven't seen up to this point of course the flip side to that is this for international lawyers at the dreaded concept of fragmentation whereas an environmental law i think fragmentation is very much the order of the day so there may be in a sense a maturity at the cost of fragmentation in that thank you very much we have a number of very interesting questions i'll start with so she's asking i assume to both of you whether could the explicit incorporation of the right to a healthy environment in the echr advance the protections standards in climate change cases based on the outcome of of course the clima senorita case and then maybe i can already read the next one lane's castle our colleague will organize this event is asking ole she's wondering why the court's framing of intergenerational burden sharing might be rhetorical instead of legal it seems perhaps significant the court avoided intergenerational equity and opted for burden sharing and then a question from felix ronkis agra back there just asking for a curious to hear your thoughts on judge akis dissenting opinion um and um asking all of whether you could elaborate further on your remark that echr may have gone further than uh the artists convention i think this is something that you addressed a bit more in the eagle talk uh blog but perhaps useful to just add a bit more on that um i will stop here and then we'll continue with uh other questions yes so i leave it up to you jerry all you can just step in whenever you so just picking at random the question on the relationship to all whose convention i think it's quite clear that the all whose convention has for a number of years been had the back of the mind of the court and we've seen that in the environmental case law where it's been used as a benchmark for sort of developing the procedural leg of article 8 in environmental cases that's so far as participation and access to information and access to independent uh scrutiny go um and we've even seen the court do that famously in cases against turkey who's a non-party to the all whose convention which i think stresses the emphasis that the court uh lays on the convention however so on the question of the extent to which it goes further this goes to the point about the requirement that the grand chamber sets for an association to have standing the requirement then it develops for that is essentially quite low in that it goes to whether it the association is established in a legal manner in the domestic legal order and then a classic reference to it has to sort of consider itself with purposes typically environmental purposes that goes to the question at hand that is in itself quite i think a low bar to set for standing for associations whereas in the all whose convention there is an a reference to at least the scope for states to restrict standings for associations in the domestic legal order now that's quite an on the reading of it quite a broad potential for limitation although of course if you read into the all whose convention the it's quite clear that any restrictions in national law as per the convention on associations right to standing have to be sort of promulgated with the convention's purpose in mind that is you still have to bear in mind the purpose of topic participation and all that so it may not be it may be a difference or a distinction with little difference but in in pure doctrinal development i still think that the bar set by the grand chamber for standing for associations is slightly lower than what the always convention requires and then on the question about whether a protocol make any additional um any difference i suppose potentially in that very much would depend on the wording uh wouldn't it my contention over the years has always been that it probably would not make a huge difference insofar as we have all but in name a right to the environment under the convention by virtue of three decades of case law now and if one reads that in detail then you can develop a doctrine that sort of quite easily identifies what the requirements are so my argument has always been i don't think we need a protocol strictly speaking but again if you if you turn or if you sort of phrase that in particular terms then there may be scope for expanding on the uh the doctrine it's developed by the court um i don't know gary is there anything you want to add to that or anyone else or um maybe just a brief comment on the intergenerational burden sharing point which as i read the judgments uh it's the fact that future generations and younger current generations face such a burden um at later points goes to the narrowing of the margin of appreciation which i think is where the the point has some some bite um uh and then just on judge ike's dissent um probably the only thing i like about it is that in paragraph four he confirms the point about non-territorial emissions which i think uh is is helpful um yeah it kind of rests on a quite extraordinary assumption that litigation against governments can fundamentally interfere with almost take resources from their ability to adopt climate policies um which i think would be true if governments were resourced in the same way that ngos like ourselves are but the reality is uh very different i i have to say is i mean i don't find this hugely controversial and and hence i find myself not necessarily taken with the dissenting opinion by a judge just as i gain so far as and again on the back of the the case law that's already there i don't think this is a a great step forward i genuinely don't think i think it's it's perfectly well in line with what has been developed in the last three decades on the point about burden sharing versus equity i genuinely don't know what lays behind using the one term or phrase over the other and my very good colleague uh kathleen surjog may have something to say about this and she has in fact written something about it in a blog post from auckland law school which is is available as of today i think so there may be more in that that i'm simply not aware of that's very possible thank you both um we have a number of other questions um one again takes us to the convention the rights of the child whether the un committee on the rights of the child in the sachi case um was found to complain inadmissible but also seems to accept extraterritorial jurisdiction this seems an exciting uh development um initially but asking uh whether the dwarta decision takes us back this is raised by um i can't see the full name again apologies for that but it's uh the least late hey i love um and the second question is again takes us back to i guess dissent um and i will read it the evidence taken into account in clima senorina suggests that the court was considering the interest of the community as a whole when deciding on the infringement of the applicant's rights while at the same time not taking into account any other relevant factors in the determination of public policy beyond environmental science this conflating of the interest of the individual applicants with the interest of the community remove any possibility for the state to consider these competing interests under article a how is this reconciled with for example pavel would any of you like to respond to these two questions please i think the last question from samir is actually a fantastic question because and i i don't think i have an answer at hand insofar as the environmental case law both powell as well as hatton and some of the other some of the more classic nuisance cases for one a better term quite clearly spells out or spell out that it's a balancing exercise between the interests of the individual claimants and the societal interests for instance in accommodating a particular polluting facility well a clima senior in and then actually pushes that balance out of the spectrum i haven't actually thought about that i must confess i think that's a very very very well made point um i suppose the point there is simply as both gary and others have alluded to the the court is well aware of what in terms the existential crisis that lies behind that and and and that in some sense then perhaps whether it presents itself as a balancing exercise or whether it presents itself as um under the heading of the margin of appreciation there is scope for varying the the maneuver for each state i suppose one way uh one way or the other um yeah maybe i'll just answer that reference to our points our the stance we took on the question of balance we said that climate change presents a fundamentally different situation to other environmental cases where there is no tension between the interest of the individual and the interest of the community in that the catastrophic consequences of warming exceeding 1.5 degrees is of concern to everyone now i'm trying to find the part in the court's judgments where um it addresses this and i think it says notwithstanding the um the um the future existential threats there's still considerations of balance and that uh goes some way towards uh some marginal appreciation uh for states um and so yeah the um strasbourg has taken obviously a more conservative view um yeah as i said in my initial presentation like we're obviously disappointed with the um position on extraterritorial jurisdiction but i do think it's quite significant how the court has approached the issue through this lens of concurrent responsibilities to um and it's done so by essentially leveling the playing field throughout europe that all countries all states must aim for 1.5 degrees and that's of significant practical consequence given both that say the dutch supreme court the german federal constitutional court we're working with a two degree temperature goal and also that as we outlined in our submissions many um european states have aligned their targets explicitly uh to uh to two degrees um so uh yeah this immediately opens up the possibility of going back to the courts in those countries um on the basis of the convention insofar as it's incorporated at the national level thank you and we would like to to then end with a with a final question for both of you to look ahead um maybe we asked you to make a prediction five years from now what will have happened as a kind of afterlife of this case in your view will there be vast amounts of domestic cases you predict um and very little in strasbourg or actually rather a lot in strasbourg will this additional protocol happen or will states now find it superfluous what are the effects beyond beyond this particular court so any thoughts you may have on that as a final wrap-up um ola may i start with you i think potentially this case may push states towards then actually accommodating an additional protocol insofar as the opposition may have disappeared and it it could then provide sort of a counterpoise to the argument that this is a political question because then we would have the basis anyway in term of in terms of the sort of long lasting effect of the decisions and the judgment i think uh one point is and i've argued this elsewhere on a number of occasions i think the real battleground for this and the most effective battleground is in the domestic courts and the point uh the case in point of that has always been in my opinion your gender where the dutch courts do do something with the echr which i don't think we would see the grand chamber do so there is scope in domestic courts for applying the this case uh beyond the baseline remember i think these case lines said minimum of these cases said minimum levels of compliance upon which states can build in terms of development in strasbourg i suspect there's going to be a continuous flow of cases that will prop the the sort of the various issues on on the edges of what we've either then seen and rejected here or uh entertained on the merit so a steady stream of cases at strasbourg but perhaps more significantly in domestic courts as well thank you and friendly gary yeah i definitely think there's going to be a second wave of climate litigation in europe um we've already cited the clemency arena judgments in a uh in another case that we filed immediately afterward coincidentally um but i think probably the biggest factor determining the rate of norm development over the next five years and beyond will be the rate of climate change because i think the judgments we have got is partly a response to the court to what the judges themselves have witnessed uh including last summer um and sadly i think um in five years time things are going to be dramatically worse and just the question is not that by any means um law is going to save us but i think if we are to be saved um the right kind of decisions from courts is a necessary but by no means sufficient condition uh and the question is can the rate of norm developments keep up with the race of deterioration in climate change thank you very much so indeed both dreams and nightmares ahead i would like to thank both of you really on my path and questions to ask for joining us and earlier margarita all three for your incisive insights everyone who attended especially those who asked the triggering questions and no doubt that someone wrote more ink will be spilled on this and a lot of judges will think more on this and hopefully it will have some crucial and fast effects because that's indeed what we need need now so thank you very much everyone for joining us today and see you later bye