Systemic Barriers in Human Rights Courts

Introduction

In April of 2024, the European Court of Human Rights delivered two landmark judgments on the climate-litigation cases of Duarte Agostinho et Autres and Klima Senniorinen. Both cases concerned a failure of states to produce sufficiently ambitious emission mitigation targets, reflecting scientific knowledge which revealed the insufficiency of current targets for the reduction of future and current risks to human rights. The cases were both monumental in furthering the role of the ECtHR in the currently-growing legal fight for climate justice, yet exhibited the procedural and systemic inadmissibilities which persist regardless of adjacent courts’ climate rights-enhancing progressions.

Duarte Agostinho, along with 5 other Portuguese youth, brought claims to the ECtHR that Portugal along with 32 other countries persistently threaten the applicants’ rights to life. Though the case was overall ruled inadmissible on a myriad of grounds, the European court’s reasoning absolving the 32 states from jurisdiction-findings in the transboundary harm accusations depicted a particularly grave and progress-impeding interpretation on climate extra-territoriality; one far behind its Global South and UN antecedents.

On the other hand, Klima Senniorinen concerned a group of elderly women who, despite having their individual claims rejected on the grounds of insufficient findings of victim status, were granted standing under their senior-women association and offered a positive judgement. The case crucially depicts the necessity for a balance in granting climate cases standing and safeguarding the rights to legal remedy, while simultaneously gatekeeping the convention and impeding litigants from exploiting their rights thus protecting the principle of subsidiarity; a balance arguably not yet fairly struck as individual litigants are highly burdened with the overcoming of near-impossible standing thresholds resulting in profusive climate litigation case dismissals.

These cases, I will argue, demonstrate how current procedural criteria constitute the fundamental flaws of the International climate litigation system. By analysing the ECtHR’s approach to the topics of jurisdiction and victim status/standing from a critical legal realism perspective in combination with relevant adjacent court rulings, this essay will evaluate the persisting legal gaps and interpretation developments in procedural climate justice law depicting the shrouded narrative-reshaping litigation case conclusions.

Jurisdiction

A key element to the pursuit of climate justice is the establishment of state jurisdiction regarding emissions of transboundary nature which may inevitably harm individuals and thus raise doubts about the extraterritorial scope of human rights protection. Generally, as climate litigation cases rely on alleged violations of human rights, international courts reasonably demand the establishment of a link between the applicant individual’s infringed rights and the defendant state to substantiate findings of extra-territorial jurisdiction. As the ECtHR rulings clarify however, sovereignty and territorial bounds constitute key foundations of the convention subsequently constraining the court’s ability to find states accountable of climate-related transgressions across territorial borders, and demanding comparatively stronger victim-state connections, making extra-territorial climate litigation near-insurmountable apart from exceptional circumstances. The court thus generates jurisdiction findings from ratione loci, derived from territorial findings, ratione personae, derived from the control over individuals, or exceptional special cases.

Findings of Ratione Loci or Ratione Personae

In Klima Seniorinnen, the court established a ratione loci link between the state of Switzerland and the Swiss applicants in accordance with art. 1 ECHR stating “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms (...)”. Likewise, the court established the same conclusion regarding the jurisdiction of the State of Portugal over the Duarte Agostinho applicants. Contentiously however, the ECtHR failed to recognise the existence of extra-territorial jurisdiction thus relinquishing the accountability of the other 32 states accused of infringing the rights of the Portuguese applicants.

This resulted from the onerous cumulative criteria delivered by the court for the identification of ratione personae jurisdiction. Essentially, though the court recognised the “certain causal relationship between public and private activities based on a State’s territories that produce GHG emissions and the adverse impact on the rights and wellbeing of people residing outside its borders”, they established an incomprehensibly high benchmark by demanding also a substantive degree of effective control over the victims of the emissions for the attribution of extra-territorial jurisdiction upon a state. This criteria thus conflictingly acknowledges the responsibilization of states for the sources of emissions, yet impedes access to ECHR legal remedies for victims of climate cross-border rights violations widening the protection gap as affected individuals fail to qualify for standing against emitters.

Exceptional Circumstances

Given the aforementioned findings, the Duarte Agostinho applicants attempted to pursue an exceptional features-based jurisdiction test where claimants argue that, on a case-by-case-basis, the foreseeability of transboundary harm originating from activities controlled by state should prescribe findings of extra-territorial jurisdiction. The court nevertheless disregards such attempts stating that it would create “a critical lack of foreseeability of the Convention’s reach” given the adverse effect of climate change on all people. This counterargument, though reasonably problematizing the need to balance state-sovereignty and the reach of human rights-guarantees, has counteractively nullified the access to transboundary climate litigation and repeatedly discouraged the appraisal of adjacent court approaches or more unrestricted criteria based on ‘power-of-intervention’ or legal obligation as suggested by critical academics.

Comparative Case on Jurisdiction

Brought before the UNCRC in 2019, the Sacchi et al. case exemplifies a more judicial remedy-enhancing reasoning for the establishment of extra-territorial jurisdiction. It dismisses the necessity for findings of ‘control-over-victim’ and simply prescribes the findings of‘control-over-the-source’ by the state. The case voices the unreasonability of limiting climate justice to territorial borders when air pollution is not bound by such principles, concluding that “every state must address climate harm outside its territory and is liable for the negative impact of its emissions on the rights of children located both within and outside its territory”, a rationale well-received by climate activists and scholars expecting adjacent courts to acknowledge and emulate in subsequent cases.

When addressing the demand for the derivation of a UNCRC-similar, more-encompassing jurisdictional rationale, the ECtHR points out the foundational differences of the UNFCCC as opposed to the ECHR arguing that their minimised receptiveness to climate litigation cases hinges on the fact that the ECHR is fundamentally built on the principles of territorial jurisdiction and subsidiarity, rather than having a broad environmental protection foundation like the UNFCCC. The ECtHR finally concludes that the UNCRC invokes a different notion of jurisdiction not yet recognised in ECtHR case-law and dismisses the possibility for a broadening of article 1 ECHR curtailing the transboundary access to climate litigation and developing a directly-blockadeing criterion. In the view of inter-state climate justice however, the ECHR’s adoption of a UNCRC-alike interpretation on jurisdiction would not only be beneficial for balancing and strengthening the reach of climate litigation, but also necessary if the ECtHR is to uphold their pledge to guarantee “not rights that are theoretical or illusory but rights that are practical and effective”.

Victim Status

The controversial criteria placed upon legal standing has for long burdened strategic climate litigants. According to article 34 of the ECHR, court applications may be issued by “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 of the Protocols thereto.” Setting aside the jurisdiction issues, the obstacle in this provision is thus proving that the plaintiff deserves victim-status. This victim-concept isn't irreversibly embedded but often weighed in light of principles of direct and indirect effect, and actio popularis resulting in a narrow scope for acceptance of litigation cases. Generally, the ECHR considers that individual litigants must be personally and directly affected. Comparably, the CJEU’s current procedural barriers demand that individual applicants be ‘directly and individually affected’, normatively blocking the access to this legal avenue for climate justice in light of the global and shared nature of environmental damages, as was highly argued in the case of Carvalho and Others v Parliament and Council. An adaptation to the individual standing criteria in both courts must therefore bridge the gap in just access to legal remedy. Whilst Klima Senniorinen did not achieve such goals and offered only a judgement towards the applicants association, the ECtHR symbolically expanded their reasonings regarding the sensitivity of victim-identification resulting in a theoretical standing advancement, though realistically unpracticed.

Victim standing adaptability?

As expanded by the court, victim status demands that applicants be subject to a high-degree of “exposure to the adverse effects of climate change”, and that there be “pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm”. Acknowledging the uncertainty of such criteria, the court thus notably expresses that criteria for standing must not be applied in a “rigid, mechanical and inflexible way” justifying that excessive formalism could render the protection of rights “ineffectual and illusory”, as occurred in the aforementioned Carvalho case where the CJEU failed to acknowledge the specific conditions of environmental damages.18 The Klima Senniorinen judgement however, reinforces an admittedly “high threshold” finding that the reduction on the quality of life of the senior applicants did not produce a sufficiently serious threat to their individual rights, finding furthermore the absence of a direct link between their medical conditions and climate change. This outcome creates doubts in the court’s promise to perform careful considerations particularly regarding “scope of risk” and “applicant’s vulnerability” while identifying applicant victimhood; Though evaluated, vulnerability and risk were not sufficiently decisive elements in the individual cases of the senior women. Optimistic scholars have nonetheless depicted the versatility of increased vulnerability consideration given its assimilation with the concept of intersectionality, referring to the overlapping of inequalities, and which could in the future “help litigants frame arguments to establish victim status”. As pointed out by Dr. A. Hefti, an intersectionality-framed approach might have improved the court’s vulnerability assessment, had it considered the age and gender of victims in addition to the health-related vulnerability of the Klima Senniorinen individuals. In this line of thought, the ECtHR’s pledge to perform a more extensive evaluation of victimhood could improve the problematized procedural standing omissions by singling out high-risk climate victims and somewhat bridging the policy-gap between rights-safeguarding and preserving a high standing threshold.

Ultimately, the ECtHR’s expansion on the interpretation of victim status and standing is conflicting: on the one hand, it establishes a de jure criteria adapted towards the nature of a climate litigation case, disregarding the paradoxical demand of its European counterpart for an applicant to be individually affected; However it also stipulates undefined criteria regarding the legal certainty of what constitutes a sufficiently “high intensity of exposure” to climate-inflicted harm and “pressing need” for individual protection. While not formally impeding individual plaintiffs' access to standing, the amenable criteria can and has served as a de facto standing inhibitor in light of the court’s historic hesitance towards climate litigation.

Conclusion

In conclusion, The ECtHR’s rulings in Duarte Agostinho and Klima Seniorinnen illustrate the persistent procedural and jurisdictional barriers that inhibit the advancement of climate litigation within the ECHR framework. While Klima Seniorinnen revealed progress by recognizing the standing of an association, this essay has depicted how it simultaneously reinforced restrictive and unclear victim status criteria that remain insurmountable for individual litigants. Conversely, Duarte Agostinho reaffirmed the ECtHR’s rigid adherence to territorial jurisdiction, rejecting the children’s attempt at transboundary human rights protection despite acknowledging the cross-border nature of climate harm.

The stagnancy of climate litigation progress in these rulings reflect the challenges of balancing seemingly irreconcilable forces of state sovereignty against human rights protection and access to legal remedies. As argued, the ECtHR’s restrictive interpretations on jurisdiction remain gravely underdeveloped when contrasted with the expansive approach of the UNCRC’s, which prioritizes accountability over jurisdictional rigidity. The ECtHR’s refusal to adapt a similar framework reinforces an access-to-justice gap rendering climate-affected individuals without legal recourse thus proliferating global climate injustice.

Though the Court demonstrated willingness to reconsider victim status and adapt standing evaluations, its approach remains largely theoretical and inconsistent in practice. Without a clearer, more inclusive interpretation of jurisdiction and standing, the ECtHR undermines its own effort towards ensuring a more conceivable and accessible human rights protection. Hence, if the ECtHR is to improve climate justice rather than perpetuate procedural obstacles to legal remedy, judges should reconsider the opportunity to integrate emerging climate jurisprudence and a rebalancing of Convention subsidiarity against the need to ensure effective legal remedy.

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