By Lucas Bergkamp & Katinka M. Brouwer
June 21, 2021
The Human Right to a Safe Climate – Putting Democracy Under Judicial Guardianship | RealClearEnergy
Climate change litigation pending before the European Court of Human Rights is designed to arouse extreme forms of judicial climate activism. These cases pose serious threats to the rule of law and democratic politics. If the European Court finds that there is a “human right to a safe climate,” its adverse ruling would place 33 European states under judicial guardianship, while destroying the European economy.
In this article, Lucas Bergkamp and Katinka Brouwer analyze the issues raised by these cases. In the final analysis, the key question is whether the European Court will jump on the activists’ “climate emergency” bandwagon or respect the rule of law and protect democratic politics. The answer to this question will determine the future of Europe.
From The Hague to Strasbourg
In 2014, on behalf of all Dutch citizens, a climate action group called Urgenda started a lawsuit against the Dutch government to force it to adopt stricter emission-reduction (mitigation) policy. This lawsuit finally came to an end in December 2019. The Supreme Court in The Hague ruled that the Dutch government must indeed comply with Urgenda’s demands. The state was ordered to cut greenhouse gas emissions by 25% by the end of 2020. According to the court, climate change threatens the right to life laid down in the European Convention on Human Rights (ECHR). The court order has resulted in the government taking many of the additional mitigation measures required by Urgenda. These measures have imposed substantial additional expenses on Dutch citizens and produced a negligible effect on the global climate.
Inspired by the Urgenda judgment, another climate case has now found its way to the European Court of Human Rights. Six young Portuguese, aged eight to 21, have petitioned the European Court in Strasbourg to protect their human rights against the dangers of climate change. The Court has the authority to hear complaints about violations of the ECHR. This treaty grants European residents fundamental freedoms and human rights, such as freedom of speech and the prohibition of torture. It also grants the right to life invoked in the Dutch climate case.
The Portuguese plaintiffs are now demanding that no fewer than 33 countries, including the 27 member states of the European Union, Norway, the United Kingdom, Switzerland, Russia, Turkey, and Ukraine, take all necessary steps to limit the global temperature increase to 1.5 °C. This would be necessary, they claim, to guarantee their right to life, which would require a safe climate. In particular, they complain about the heatwaves, drought, and forest fires in Portugal in recent years, and suggest that these phenomena are causally linked to the “inadequate climate policies” of the 33 states concerned.
The young Portuguese plaintiffs are supported by the Global Legal Action Network (GLAN), an NGO that fights “injustice” through legal proceedings to improve the lives of the powerless. In their application to the Court, the youngsters assert that there is a “climate emergency,” referring to a statement by scientists. The 33 countries sued are accused of failing to implement sufficient reductions in greenhouse gas emissions. The plaintiffs are therefore demanding that the Court order all 33 countries to take a series of measures to address this “climate emergency.”
Like Urgenda, the plaintiffs in this case rely heavily on invoking the right to life, suggesting that it effectively includes a right to safe climate. To support their demands for further mitigation measures, they cite the Paris Climate Agreement, which has been ratified by all 33 states in the case. They ignore the fact that the Paris Agreement does not grant any individual rights to emission reduction, and, thus, cannot be “read into” the human right to life. Moreover, the Paris Agreement does not even impose any specific mitigation obligation on the states that have ratified it.
Disregarding these limitations, the applicants, invoking the IPCC’s special report, assume that achieving the collective aspirational target reduction of 1.5 °C referenced in the Paris Agreement would guarantee a safe climate. On this basis, they assert that all state parties to the Paris Agreement have a duty to do their “fair share” to reduce emissions to meet the 1.5 °C target by 2100. This fair share would have to be determined on the basis of the Climate Action Tracker, which shows that no country in the world has taken sufficient measures to meet the 1.5 °C target, except Morocco. According to Climate Action Tracker, Morocco is a real “climate front runner” as it pursues the “triple win” – adaptation to climate change, mitigation of the impact of climate change, and creation of new opportunities.
Separation of powers
In the Urgenda case, the Dutch government argued that the court should refuse to grant the relief sought by the climate activists based on the trias politica, or separation of powers. When the Dutch government announced that it would appeal to the Dutch Supreme Court in the Urgenda case, Climate Minister Wiebes said: “We dispute how the court has interfered with the workings of democracy. In fact, democracy has been sidelined.” The Supreme Court disagreed with Wiebes and did not hesitate to sideline democratic policymaking. According to the court, the trias politica would not be a problem. Moreover, the “climate crisis” would have created an exceptional situation threatening human life. Because the Dutch government had not disputed any of Urgenda’s pseudoscientific, alarmist statements, the court could assume them to be accurate and truthful; no fact-checking was done, no expert witnesses were heard. In no small part based on these pseudoscientific “facts,” such as an alleged “rapid sea level rise, which could render part of the Netherlands uninhabitable,” the court considered it acceptable, as Urgenda’s lawyer put it, “to place democracy under judicial guardianship.”
Treating Urgenda like child’s play, the Portuguese children are asking the European Court to place not just one democracy, but 33 democracies under judicial guardianship – and to impose not just one, short-term order on them, but four long-term orders that would cripple their economies. The state of climate emergency is so serious and so urgent, these children claim, that they should not even be asked to follow the normal procedure and turn to the national courts first. Furthermore, they suggest that national procedures and remedies would be uncertain, diverge, and not meet their needs adequately. The European Court should therefore waive the admissibility requirements and itself order the measures necessary to avert the climate crisis.
If the Court were to do so, however, the legislatures of the 33 states concerned could not overrule its verdict, because human rights override ordinary legislation. If the court were to impose the ends or means of climate policy, it would effectively usurp the powers of 33 European legislatures and disenfranchise their populations.
The scope of the Portuguese case is enormous and could affect the entire European economy in multiple ways. Indeed, the measures the children are demanding would be devastating. They want the Court to order the state governments concerned to take measures in four areas:
- They want a further and faster reduction of greenhouse gas emissions from the territories of all states.
- They demand a ban on the export of fossil fuels from the countries concerned.
- They want the greenhouse gas emissions associated with the production and consumption of imported products to be offset.
- They demand that restrictions be imposed on multinational corporations established in their territory with regard to their global greenhouse gas emissions.
These climate policy measures would have strong direct and indirect effects – competitiveness, innovation, investment, industrialization, international trade, production, consumption, and wealth would all be at risk in Europe. With climate policies both taking up very substantial amounts of resources and reducing the ability to create them, resources would not be available for other policies and needs. In addition, as European climate policy has important ramifications for the economies of countries around the world, unbalanced, excessive climate policies would cause more damage than climate change could ever do.
Futile court-made climate policy
Thus, this lawsuit’s aim is to create a comprehensive system for the 33 states concerned to rapidly reduce and ultimately eliminate their total direct and indirect contributions to global greenhouse gas emissions. Ironically, the plaintiffs are asking the European Court to impose an expanded version of the failed Kyoto Protocol on Europe, while the Paris Agreement was intended to avoid the Kyoto Protocol’s erroneous approach. This system would be superimposed on the EU Emissions Trading System and all other EU climate policies. The question thus is whether the European Court of Human Rights could rule in this case without interfering with EU climate policymaking, requiring the EU member states to violate their obligations under the EU Treaties and secondary legislation.
If the European Court buys into the plaintiffs’ “emergency” narrative, the question is whether it will want to see the elephant in the room: the 33 countries emit only a small fraction of the worldwide greenhouse gas emissions, and their contribution will soon be less than 10%. The effect of the measures demanded by the applicants on total worldwide emissions will be marginal at best, since emissions from the rest of the world are expected to continue to increase as economies develop. Emissions from China have risen sharply and have not yet peaked. India’s emissions are on the rise, and many other developing nations will see their emissions grow once their economies start expanding. None of these countries have any obligations to limit their emissions under the Paris Agreement. European efforts are therefore likely to be a drop in the ocean. While the useful effect would likely be small at best, the adverse effects on Europe’s economies would be enormous.
Admissibility and partisanship
So far, the Court has given the Portuguese case undue respect. The plaintiffs’ application is clearly inadmissible because the Court may not hear a case until all national remedies have been exhausted; the Portuguese children did not bother to initiate even one national procedure. To justify their disregard for the requirement that all national proceedings be exhausted, the applicants have not only invoked the urgency of the “climate emergency” but also referred to the “inadequacy” of national judicial processes. The ECHR, however, does not set forth any exception for the urgency of a matter or the inadequacy of national remedies. Arguing the inadequacy of national procedures without having tried any of them, is merely another way of saying “we can’t get it our way before the national courts – therefore, the European Court should help us out.”
The application also fails to meet several other mandatory admissibility requirements. None of the 33 states, except Portugal, have jurisdiction over the applicants, who reside in Portugal. This implies that the case could proceed, if at all, only against Portugal. None of the applicants can claim to be “victims” in the sense of the ECHR, and none of them suffered any “significant disadvantage,” which means that their application must be denied. The European Court should therefore have rejected their request without further examination. Alas, it did not. By entertaining this case, the Court treats a clear-cut case of inadmissibility as a legitimate question for debate, thereby discarding its responsibility for ensuring compliance with the ECHR and guarding against abuse of legal process under the ECHR.
Instead of rejecting the application, as required by the Convention, the Court gave it “priority consideration” based on its “urgency and importance.” Why this inadmissible application deserves priority consideration the Court did not explain. Adding insult to injury, the Court, on its own volition, also added “torture and inhuman treatment” to the charges against the 33 states. Implicitly, the Court thus suggests that national politicians who do not support “adequate” climate policies may be guilty of torture and can be prosecuted before the International Criminal Court. Through the selective admission of third-party intervenors, the Court also attempts to steer the record in this case. But the most egregious violation of impartiality was the comment made by two of the Court’s judges that “no one can legitimately deny that there is a climate emergency,” thus effectively depriving the defendant states of an important argument and violating the right of defence.
“The European Climate Change Court”
Deploying its doctrine of “progressive realization” of human rights through “dynamic interpretation” of the ECHR, the European Court has already built up a reputation as an “Environmental Protection Court.” Although the ECHR and its protocols do not guarantee the right to a healthy environment, the Court has ruled in nearly 300 cases on various environmental risks, environmental damage, and the need for environmental protection. Through a step-by-step approach based on the “living instrument” creed, the Court has gradually extended the scope of various political and civil rights to create a right to protection of the environment. In this manner, the Court has given itself an important role in improving environmental protection by “greening” existing human rights.
As climate change plays an increasingly important role in government policy, the European Court apparently became concerned that it was missing out. Last year, the Court decided to jump on the climate bandwagon and organized a major conference entitled “Human Rights for the Planet.” During that conference, the president of the Court posed the question as to whether the European Court of Human Rights should become the “European Climate Change Court.” Yes, the European Climate Change Court. We will have to wait and see whether this was intended as a rhetorical question; it certainly looks like one.
The limits of the European Court’s powers
The case of the Portuguese youth is the first case in which the European Court examines climate policy. Like the Dutch judges in the Urgenda case, the European judges are faced with the question as to whether they want to place democracy under guardianship to “save the climate” or whether they prefer to respect the limits of their powers, the rule of law, and political democracy.
Needless to say, under the separation of powers doctrine, making laws and policy decisions is a task of the legislature, not of the judiciary. The Dutch Supreme Court, however, showed the European judges a way out of this dilemma. It made a distinction between the ends and the means of policy, and then argued that courts should be allowed to determine the ends of legislation, but not the means. The fact that there was no basis in law for this distinction – to the contrary, the law suggested that the judiciary should not impose any generally applicable rules, ends, or means – did not matter.
It remains to be seen what the European Court will do. In our political system, the judiciary has much less democratic legitimacy than the legislative and executive branches. The European Court has even less democratic legitimacy, as it is part of a supranational governance structure with weak democratic legitimacy anyway. The powers of supranational organizations are much less embedded in a system of “checks and balances.” This power system operates far away from national democracies. For these reasons, the European Court should pay great attention to the limits of its powers. Countries that disagree with the verdict of a group of judges in Strasbourg have limited possibilities to correct their dictates. Their only options are to ignore the Court’s ruling or withdraw from the ECHR, which is not politically feasible (and if it is politically possible, it constitutes a high hurdle and would produce undesirable results). Political majorities in all 33 countries would be forced to live with a European Court that dictates policy to them, and political minorities will feel like they have been thrown under the bus, as any concessions they have extracted from the majorities would be annulled at once.
Flood of climate cases?
The relentless media coverage of all sorts of issues related to the alleged “climate crisis” has led to an increase in the number of lawsuits over climate policy. In November 2020, a second climate case was filed at the European Court, this time by senior Swiss women. They argue that the Swiss government is not doing enough to combat climate change, which would have multiple negative consequences, especially for elderly people, who are more sensitive to heatwaves. The Swiss judge turned down their demands, ruling that the ladies should argue their case before the parliament, not before a court of law.
A ruling favorable to the Portuguese youngsters would open the floodgates and accommodate many more climate cases all over Europe. It would mean that the focal point of climate policymaking would move from politics to the courts. Political opponents of ambitious climate policy could be shoved aside and neutralized by the climate movement. National parliaments elected by the people would become responsible for carrying out climate dictates issued by unelected judges. Climate policymaking through democratic politics would be permanently subjected to judicial oversight – thus contradicting fundamental principles of constitutional democracy. It would annul the rule of law and separation of powers, disenfranchise opponents, and legitimize a climate “dikastocracy” – i.e., the rule of judges.
As the ECtHR operates in the European legal and political order, a risk always remains that it will overplay its hand. International courts, such as the ECtHR, have limited ability to enforce their judgments against unwilling governments and depend on domestic forces to get their decisions implemented. The strength of these domestic forces vary greatly.
A judgment favorable to the Portuguese youngsters might be as damaging to the ECtHR as to the countries covered by the Convention. It would adversely affect the Court’s credibility and may result in a fracturing of the consensus that has underwritten the Convention up to now. Several of the defendant countries have a track record of not taking the ECtHR’s judgments seriously, and they are even more likely to ignore expensive climate dictates. For instance, Russia and Turkey cannot realistically be expected to comply, and the domestic climate movement would not be able to change that outcome.
Whether EU climate policies would be affected by any such ECtHR judgment is hard to predict. The EU is in the process of acceding to the ECHR, but its current climate ambitions are already causing serious concerns in some member states. In any event, an activist ECtHR climate judgment would probably hurt the EU’s accession.
There are a few bright spots in all of this, however. In contrast to the Dutch Supreme Court, the highest court of Switzerland honoured the rule of law and the separation of powers. Unlike the Dutch court, the Swiss court discarded the false idea that the claimed “urgency” or “exceptional climate emergency” should affect the application of clear law. It rejected the claim that human rights should be expanded to include a right to a safe climate. It did not buy into the misguided idea that the judiciary may dictate the ends of climate policy. It refused to place democracy under guardianship.
Further, a few politicians are aware of the threats to democracy and politics posed by the climate change cases before the European Court of Human Rights. In the European Parliament, Dutch members of the ECR Group (Rob Rooken and Michiel Hoogeveen) submitted written questions to the European Commission about the Portuguese case. In their questions, they note that “the ECtHR is considering imposing a series of draconian climate measures on  states, which would overrule their democratic policy decisions and destroy their economies,” and they ask how the Commission “will seek to defend EU climate policymaking from interference or a possible takeover by the ECtHR?”
Indeed, this is the key question. European democracies are generally ill-equipped to remedy judicial activism, particularly where it is based on the “human right trump card.” Once a court has ruled that a human right requires action by the state, the legislature cannot simply overrule such a ruling through legislation, because legislation may not infringe human rights.
Will the European Court follow the Dutch Supreme Court’s lead and try to “save the climate,” thus securing the climate movement’s approval? Or will it respect the limits of its powers, the rule of law, and protect democracy, as the Swiss court did?
At its inception, the ECHR was intended to protect the people from totalitarian government by granting them human rights. It would be both ironic and sad if the ECtHR were to use human rights to impose totalitarian government in the name of a “noble cause.”
We will probably know later this year whether the European Court, at least in this case, can suppress the urge to impose its moral superiority on the people of Europe.
Lucas Bergkamp is a medical doctor and lawyer and senior policy advisor based in Brussels. Katinka Brouwer is a lawyer based in Brussels. At the initiative of Rob Roos (JA21, The Netherlands), they are currently working on a report on the legal and governance issues of climate change litigation before the European Court of Human Rights for the European Parliament’s ECR Group. In due course, the report will be available at www.echrexposed.eu.