Asymmetries in the admissibility – criteria of the Klimaseniorinnen case and the prospects of further climate cases before the ECtHR

Prof Dr Birgit Peters

Birgit is a Full Professor of Public Law, specialising in International and European Law, at the Faculty of Law, Trier University (Germany). She earned her PhD from Humboldt University in Berlin and subsequently held postdoctoral positions at the University of Oslo and the Universities of Bremen and Münster. She previously served as Associate Professor of Public, European, and International Law at the University of Rostock. Her current work focuses on international and European climate change law and litigation, the legal dimensions of biodiversity protection, and the intersection of human rights and environmental law.

Introduction

Much has been written about the Klimaseniorinnen judgment before the European Court of Human Rights. Much has also been written about the thresholds established by the Court in this important judgment, to the extent that it is hardly possible to say something about the judgment that has not been mentioned before.

There are a couple of further climate cases pending before the European Court of Human Rights. One of them is the Engels and Others case. The case concerns the claim of several kids and youth against the current German Climate Protection Act. The claimants argue that even after Neubauer, the preconditions of the act have still not been fulfilled. The German Constitutional Court dismissed their claim. The case was considered settled after the groundbreaking findings in Neubauer. Now, the claimants hope the European Court of Human Rights will deal with their case. Several other climate cases are pending further review.

The findings on victim status in Klimaseniorinnen

These hopes notwithstanding, in Klimaseniorinnen, the European Court of Human Rights has shut the door to individual claimants in climate-related cases. The Court established that to fulfil the victim requirement in Art. 34, claimants must prove that they are (1) facing a high intensity of exposure to the adverse effects of climate change and (2) a pressing need to ensure their protection (paras 487/488 of the judgment). Those criteria were established by the Court despite the proven vulnerability of elderly women to heat waves and further conditions of climate change. The ECtHR further commented that the claimants had not demonstrated that the “individual exposure of the claimants could not be alleviated by adaptation measures” (para 533). Hence, the criteria established in Klimaseniorinnen to prove individual victim status in climate-related cases are essentially three: (1) special intensity of exposure, (2) pressing need for protection, and (3) no possibility to address this exposure by adaptation or other measures to reduce harm.

This makes the possibility of a successful individual climate claim before the ECtHR minuscule: Claimants need to prove a unique and individual condition that makes them particularly vulnerable in climate cases, which, above all, cannot be addressed by further adaptation measures. Even statistically proven vulnerabilities of certain victim groups, such as the elderly or children, will remain unaddressed. Also, the claimants in Engels will most likely not pass the victim requirements of Klimaseniorinnen. Successful individual claimants will be those with highly unique health conditions that cannot be cared for otherwise. Many have criticised this exceptionally strict take of the Court on the victim requirement.

In the same judgment, however, the Court opened the door widely to associations as collective claimants in climate cases. In fact, the Court saw “[c]ollective action through associations or other interest groups… [as] … the only means through which the voice of those at a distinct representational disadvantage can be heard and through which they can seek to influence the relevant decision-making processes.” (Para. 489). The Court considered associations had to be (1) lawfully established, (2) able to demonstrate pursuit of purpose and (3) qualified to represent interests (para. 502).

Explanations

There may be strong arguments for the ECtHR to proceed with the victim requirement in the way it did: the fear of opening the floodgates to further climate claims without being able to distinguish between real victims and actiones populares; national constraints about reviewing the legislator, which is particularly strong in countries without constitutional review by a national constitutional court, such as Switzerland or the UK; “wider issues of the separation of powers” (Para. 413); the idea that only adaptation may be geared toward mitigating individual harm, whereas climate mitigation is seen as a general legislative measure owed by all states globally, and collectively (see, for example, Zahar).

Three reasons for critique

Those considerations notwithstanding, the solution of the Court in Klimaseniorinnen for the victim status of individual claimants remains problematic for three main reasons:

1. Disregard for the functional equality of climate measures

   
   

Firstly, the findings on individual victim requirements overlook the equal importance of mitigation and adaptation under the current climate regime. Mitigation measures concern the stabilisation of GHG concentrations in the atmosphere (UNFCCC, Art. 2(1)). Adaptation refers to preventive State measures aimed at mitigating the negative effects of climate change (UNFCCC, Art. 3(3), PA, Art. 2(b)). According to the IPCC, adaptation measures refer to adjustments in ecological, social, or economic systems in response to actual or expected climate stimuli and their effects.

There is a common consensus in international climate law that it is impossible to argue that either of these measures is more important than the other, or that one should be adopted by states while the other should not. Abating climate change cannot be done without either of those measures. This is especially true considering the different characteristics of mitigation and adaptation. Mitigation is primarily a preventive measure. It prevents climate change from arising. Adaptation addresses the adverse effects of climate change that have already occurred or are expected to occur. It can be preventive, but it is also reactive. Under the international climate regime, States owe mitigation and adaptation simultaneously.

From an individual rights perspective, both mitigation and adaptation are necessary to address the worsening of individual living conditions. Courts and human rights adjudicatory bodies have, therefore, rightly referred to the duty to protect certain human rights when referring to mitigation measures. The ECtHR disregards the importance of mitigation measures as a preventive tool that improves individual living conditions, arguing that victim status can only be claimed if the state cannot address the human rights violation through measures that reduce individual harm, i.e., adaptation.

2. Offsetting individual against collective interests

   
   

Second, by granting victim status to interest organisations alone, the Court pits individuals against collective interests in climate cases. The Court’s solution requires victims to organise and form interest organisations. The Court also requires individuals to lobby for their interests in the legislative process. Both requirements defy Dworkin's idea of rights as trumps, where human and individual rights serve as trumps against the general interest (Dworkin, 1977). Even if mitigation is regarded as being within the general interest (Mayer), individual rights can still take precedence over that interest, for example, if enforcement of the public interest is delayed, insufficient, or non-existent, thereby violating individual rights. Remedying those violations, however, requires access to individual remedies (and not only exceptional victim status), for individuals.

3. Offsetting collective against individual access to justice

   
   

Additionally, the ECTHR’s solution regarding admissibility and the victim requirement does not align with its findings on the merits of the case. At the merits, the Court found that Articles 2 and 8 of the ECHR contained an obligation of due diligence to take relevant legislative or administrative measures against climate change, which included providing access to information and promoting public participation (para. 539). The Court also argued that Article 6 of the ECHR was violated because the claimant’s interests were not taken into account in the national decision-making process. The Court even established Art. 6 of the ECHR contained a right to access to justice in cases concerning legislative review because it considered climate change as one of the cases where there was a ”pressing need to ensure the legal protection of human rights as regards the authorities’ allegedly inadequate action to tackle climate change” (para 635). As others have already highlighted (Eckes, Eckes and Trapp), these standards strongly resemble the so-called Aarhus rights in climate proceedings, i.e. access to information, participation as well as justice. The Court, however, considered the Aarhus regime to be inapplicable (para. 494; see Eckes and Trapp).

However, if procedural rights are considered of primary importance in climate proceedings, then there must be a way for individuals to enforce those rights in international review proceedings dealing with national decision-making processes. Otherwise, the Court would not keep to its own findings on access to justice in climate cases. Moreover, it would not be in keeping with the importance of procedural rights for collective decision-making processes and democratic decision-making, which is highlighted in Klimaseniorinnen (paras. 412, 421). In any case, the current Court solution exhibits a problematic asymmetry in the provision of access to justice in climate proceedings.

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