The signing of the Paris Agreement in 2015 ushered in a new phase of climate change litigation distinguished by the use of human rights and constitutional law arguments. As we prepare for COP28, in this second insight we highlight the increasing relevance of human rights litigation as it applies to the global challenges posed by climate change...
Introduction
This " rights turn" is increasingly being directed against corporate actors. The claimants in Milieudefensie et al v Royal Dutch Shell plc (still under appeal) argued that Shell has a duty of care to take action to reduce its greenhouse gas emissions. This argument was based on the Dutch Civil Code as further informed by Articles 2 (right to life) and 8 (right to a private life, family life, home, and correspondence) of the European Convention on Human Rights (ECHR). The Hague district court on 26 May 2021 found in favour of the claimants and ordered Shell to reduce its emissions by 45% by 2030 across all activities, including both its own emissions and end-use emissions.
Human Rights, the Environment and the European Court of Human Rights
The Grand Chamber of the European Court of Human Rights (ECtHR) is currently considering three climate change cases. The results will contribute significantly to the legal framework of the evolving global corporate sustainability project. Many of the Court’s earlier judgments have helped to strengthen environmental protections in several countries. However, the Convention does not expressly provide for the right to a healthy environment in the text of the treaty.
Verein KlimaSeniorinnen Schweiz and Others v Switzerland and Carême v France were relinquished[1] to the Grand Chamber last year and it held oral hearings in these cases earlier this year on 29 March. The Grand Chamber heard the oral hearing in Duarte Agostinho and Others v Portugal on 27 September 2023. The Court adjourned six other cases until such time as the Grand Chamber has ruled on these three cases.
Carême concerned a complaint by an inhabitant and former mayor of the municipality of Grande-Synthe. He submitted that France has not taken sufficient steps to prevent climate change and that this failure entails a violation of his right to life under Article 2 and his right to respect for private and family life under Article 8 ECHR. KlimaSeniorinnen involved a complaint by a Swiss association of senior women. They also complained that their rights under Articles 2 and 8 had been violated. Furthermore, they argued that they did not have access to a court within the meaning of Article 6 of the Convention and that their rights under Article 13 (right to an effective remedy) had been violated. They alleged that the duties should be considered in the light of the principles of precaution and intergenerational fairness contained in international environmental law; that the State failed to introduce suitable legislation and that it failed to put appropriate and sufficient measures in place to attain the targets for combating climate change.
The Irish government intervened as a third party in KlimaSeniorinnen. These submissions focussed on some of the key challenges that these cases pose for the Court. Counsel for the Irish government argued that there were three insuperable difficulties. First, that the Court was being asked to extend in a fundamental way the scope of the Convention and the role of the Court under the Convention; second, that this operated to bypass the democratic process through which climate action must take place if it is to be legitimate and effective; and third, that it was inconsistent with the dedicated international framework governing climate change to which contracting parties have long been committed.
Admissibility, Substantive and Remedial Issues
These cases raise a number of admissibility issues. First, the hearings in both KlimaSeniorinnen and Carême involved discussions around the issue of victim status under Article 34 of the Convention.[2] President O'Leary queried, in the time allotted for judicial questions in KlimaSeniorinnen, whether it might be opportune to reconsider the scope of Article 34, given that the Aarhus Convention now gives specific rights to environmental associations.
Second, the hearing in Duarte Agostinho and Others v Portugal will likely involve a discussion of the requirement under Article 35 ECHR that applicants exhaust all domestic remedies before lodging an application to the ECtHR. Finally, this application will also press the issue of extraterritorial jurisdiction. The applicants live in Portugal. They brought claims against 33 high-emitting Council of Europe member states, including their home state, alleging that these states all share responsibility for climate impacts suffered in Portugal. The Court, therefore, will be asked to consider the responsibility of states for transboundary human rights impacts. The Inter-American Court of Human Rights (IACtHR) developed such standards in its Advisory Opinion OC-23/17 by requiring a causal link between the human rights violation committed abroad and the acts in the territory of the state of origin. Given the transboundary nature of climate cases, it does seem that the court will have to consider a causality-based jurisdiction standard.
Beyond these admissibility issues, much of the discussion on substantive matters focussed on the actual content and detail of the state’s positive obligations. The primary duty was described as the obligation to put in place a legislative and administrative system which is effective in minimizing environmental risks. Judge Bošnjak in KlimaSeniorinnen queried what criteria the Court ought to apply when establishing whether the mitigation efforts adopted by Switzerland were sufficient. The applicants in both cases relied heavily on the argument that this effectiveness assessment ought to be shaped by international law, including the Paris Agreement's 1.5oC aspirations, and the so-called ‘fair share’ approach to defining state parties’ obligation under article 4(3) of the Paris Agreement. Central to this argument is the highly technical work developed by the independent scientific group known as the Climate Action Tracker (CAT), whose research was heavily cited before the Court in support of the argument that the responding states (and most developed countries in general) need to adopt emission reduction targets and Nationally Determined Contributions (NDCs) that are much more ambitious than is currently the case.
Although not directly in focus in these cases, there has also been commentary on remedies before the Court, with suggestions that the Court’s approach needs more transparency and consistency and that climate cases lend themselves to remedial approaches that go beyond purely declarative or monetary outcomes.
European Human Rights, the Environment and Corporate Actors
At an EU level, the Corporate Sustainability Reporting Directive (CSRD) and the Commission's Proposal for a Directive on Corporate Sustainability Due Diligence (CS3D) impose obligations of disclosure and due diligence in relation to the environment and human rights aimed at preventing and mitigating the most harmful effects of business activities within and outside the EU.
The CSRD came into force on 5 January 2023. It requires companies in scope to report on environmental, social, governance and human rights matters in a dedicated section in their annual reports. Reporting requirements for companies already subject to existing reporting rules under the Non-Financial Reporting Directive will begin on 1 January 2024 (our webinar on the Directive's legal and Reporting Requirements can be found here). The Commission adopted the first set of European Sustainability Reporting Standards on 31 July 2023 which we wrote about here. On 13 September the EU Commission proposed changes to the thresholds for the application of the Directive and on 18 September EFRAG indicated that work on sector-specific European Sustainability Reporting Standards is to recommence. We wrote about these developments here and here.
The Proposal for the Corporate Sustainability Due Diligence Directive (CS3D) was first published by the European Commission on 23 February, 2022. On 1 December 2022, the European Council adopted its own negotiating position, or “ General Approach” to the proposal. We wrote about these developments here. On 1 June 2023, the European Parliament adopted the CS3D as a negotiating text. Policy differences between the EU co-legislators have emerged which means that a Trilogue negotiation process will be required to resolve the differences between these three proposals. This is expected to conclude by 2024. Once officially adopted, the Directive will be transposed into domestic laws within two years by EU member states.
Conclusion
This turn towards human rights in climate change litigation, while not without its challenges, may ultimately prove to be a useful basis for the development of a transnational climate change jurisprudence, given the widespread adoption - and similarities in formulations - of rights across diverse legal instruments and legal systems. While the legal architecture of the CJEU and the ECtHR in this new area is still under construction, common pillars are emerging around issues such as the content of states' positive obligations and the interpretation of the evolving science, including how to approach the issue of fair share, all within the context of the impact of transboundary human rights.
Leaders at COP28 will assess the results of the first global stocktake and the world’s collective progress towards meeting the goals of the Paris Climate Change Agreement. Matheson's ESG Advisory Group was formed in 2021 to support clients to meet their ESG goals.
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27 September 2023
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[1] Article 30 of the ECHR provides "[W]here a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects."
[2] Article 34 provides that ‘[t]he Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.’