By Linnéa Nordlander
Rights-based climate change litigation has significantly increased in Europe in recent years, especially following the landmark judgment by the Supreme Court of the Netherlands in Urgenda Foundation v Netherlands in 2019. The decision inspired similar rights-based ‘systemic mitigation’ cases in other European jurisdictions and before the European Court of Human Rights (ECtHR). Although this phenomenon is not exclusive to Europe, a difference in the types of claims made in Europe and elsewhere (specifically in the UN and in the Inter-American human rights systems) has emerged. In particular, there is a distinction between the use of health-based arguments and culture-based arguments. This post explores this distinction and considers its possible causes and consequences for rights-based litigation in Europe.
Two types of arguments: Health and culture
Health-based arguments are the cornerstone of systemic mitigation cases in European rights-based climate litigation, whereas cultural claims do not feature at all. This is perhaps unsurprising, given that Urgenda case set a precedent for such arguments. In the case, the applicants argued that their rights to life (article 2) and to private and family life (article 8) the European Convention of Human Rights (ECHR) would be violated due to, inter alia, the health impacts of climate change. Specifically, the applicants cited impacts like heat stress, respiratory ailments, and spread of infectious diseases, among others. No cultural arguments were raised by the applicants.
The applicants’ approach in Urgenda is mirrored by the cases pending before the ECtHR. For example, in both Duarte Agostinho and others v Portugal and others and Verein KlimaSeniorinnen v Switzerland, the applicants argue that their rights under article 2 and 8 are being and will be violated due to heat stress affecting their well-being as children and elderly women respectively. Neither group of applicants have invoked cultural arguments.
The preference for health-based arguments in Europe contrasts with those used by litigants in the UN and Inter-American systems. In Daniel Billy and others v Australia, a group of Torres Strait Islanders presented both health and culture-based arguments to allege that Australia’s climate change mitigation and adaptation efforts were inadequate to the extent that it violated their rights to, inter alia, life, private and family life, and culture as guaranteed by the International Covenant on Civil and Political Rights (ICCPR). The Human Rights Committee accepted the arguments regarding rights to culture and private and family life, acknowledging the adverse impacts of climate change on the applicants’ ability to enjoy their culture. For example, impacts of “flooding and inundation [on the applicants’] villages and ancestral burial lands; destruction or withering of their traditional gardens through salinification caused by flooding or seawater ingress; decline of nutritionally and culturally important marine species and associated coral bleaching and ocean acidification” and the experience of “anxiety and distress owing to erosion that is approaching some homes in their communities, and that the upkeep and visiting of ancestral graveyards relates to the heart of their culture, which requires feeling communion with deceased relatives” were noted as problematic. The right to life claim relied primarily on the health impacts of climate change, specifically in relation to the particular vulnerability of the Torres Strait region to increased disease and heat-related illness. The Committee ultimately rejected that claim. The decision does not appear to have impacted rights-based climate litigation in Australia yet, although there may be potential for an “Urgenda effect”-type of impact to manifest here.
The focus on culture is also reflected in the Athabaskan Petition, which was filed with the IACtHR in 2013. In the claim, the petitioners, the Arctic Athabaskan Council, argue that Canada’s inadequate regulation of black carbon emissions violates the rights of the Arctic Athabaskan Peoples in the US and Canada to culture and health. The petitioners’ argument centers on the impact of climate change on traditional ways of life and culture, including in relation to the right to health argument. For instance, the petitioners argue that the Arctic Athabaskan Peoples’ are “less able to obtain [traditional] food through traditional means of hunting, fishing, trapping, or gathering” due to climate change, and that they must therefore “supplement their diet with store-bought foods,” which has led to “[i]ncreased incidence of cancer, obesity, cardiovascular disease and diabetes.” As the petition is still pending, it is uncertain how the arguments will be received by the Court.
Why this difference?
Although a limited sample to consider, the difference in the approaches between supranational litigation in Europe as compared to the Americas and Australia is noteworthy. This contrast raises the question of why this distinction has arisen. Below, some possible explanations for this phenomenon are explored:
- The absence of a right to culture in the ECHR. Unlike the ICCPR, which includes cultural rights for minority groups (article 27), the ECHR does not contain such a right explicitly. Given that the Convention plays a central role in rights-based litigation in Europe, this discrepancy between the treaties may be a crucial factor in the different approaches seen in rights-based litigation. Notably, the ECHR also does not contain a right to health, yet health-based arguments can still be made under article 8 of the Convention. This is unsurprising in itself as article 8 is a cornerstone of environmental claims before the ECtHR. That said, as much as the EctHR has made clear that the health of the individual falls within the scope of article 8, the same is true of enjoyment of culture. Therefore, climate change litigation on the basis of either health- or culture-based claims, or a combination of both, should be possible under article 8, even in the absence of explicit rights to health or culture.
- The above leads to a possible second explanation, namely the health-centered environmental jurisprudence of the ECtHR. The environmental jurisprudence of the Court has mainly developed around protection from environmentally-driven health impacts, particularly on the basis of articles 2 and 8. For example, cases have dealt with the health effects of pollution from waste treatment plants, production of fertilisers, and steel production, among others. Comparatively, cultural arguments before the Court have been less successful in environmental contexts, for instance in relation to protection of cultural heritage. The focus on health in the climate change cases pending before the ECtHR therefore appears to be a logical continuation of the Court’s long-standing environmental jurisprudence, as reflected by the fact that the cases generally use and build on this existing body of case law.
- The types of applicants. In contrast with the applicants in Daniel Billy and the Athabaskan Petition, where applicants are Indigenous Peoples, most of the applicants in the cases before the ECtHR are members of majority populations. An exception here is in the Greenpeace Nordic v Norway, where two of the applicants are Sámi. While the application does include arguments relating to the impacts of climate change on Sámi culture, these are not central to the application. The fact that, by far and large, applicants in the cases pending before the ECtHR are members of majority populations means that applicants are unlikely to experience impacts on culture as a consequence of climate change in comparable ways to Indigenous individuals and peoples, like the applicants in Daniel Billy and the Athabaskan Petition, due to the unique bonds Indigenous Peoples typically have with their lands. Instead, many applicants before the ECtHR base their claims on membership of other types of groups that are especially vulnerable to the effects of climate change. For instance, in both Duarte Agostinho and KlimaSeniorinnen, the applicants argue that their age (in combination with their sex, in the case of KlimaSeniorinnen) make them particularly vulnerable to the heat-related effects of climate change. The applicant in Müllner v Austria also makes heat-related arguments, but based on particular vulnerability due to disability (temperature-dependent MS). Therefore, while applicants in these cases do highlight their vulnerability to climate change, these arguments are not made in relation to impacts of climate change on cultural acts or expression themselves. However, health impacts may by extension prevent individuals from participating in cultural life and as such, claims regarding health impacts may of course have knock-on implication for culture.
Implications for litigation before the ECtHR
It is difficult to say with any certainty whether the difference in approach will impact the success of the cases pending before the ECtHR. However, it is worth noting that the health-oriented approach has proven successful in various European jurisdictions, including in Urgenda, Neubauer et al v Germany, and Klimaatzaak v Belgium and others (awaiting appeal), in which the ECHR has played a vital role. The approach also builds on the long history of health-focused environmental jurisprudence before the Court. Both of these factors indicate the potential of these cases.
Although health claims have been made at the international level, such cases have not been successful thus far. The Human Rights Committee rejected Teitiota v New Zealand, where health and survival claims were made in relation to sea level rise. Similarly, the Committee on the Rights of the Child rejected Sacchi et al v Argentina et al, where intergenerational health claims were made by an international group of children (notably alongside cultural arguments in relation to Indigenous applicants). However, these cases were not dismissed due to rejections of the health-based arguments made. In Teitiota,the Committee found that the conditions of climate change in Kiribati were not yet severe enough to constitute a violation of the right to life and was thus an issue of the temporal displacement of the impacts of climate change. In Sacchi, the case was deemed inadmissible because the applicants had failed to exhaust domestic remedies (it is noteworthy that the applicants in Duarte Agostinho have also not exhausted domestic remedies). Therefore, the dismissal of health-based cases at the international level does not necessarily indicate a negative outcome for cases pending before the ECtHR.
These dismissals do, however, mean that there is limited relevant precedent from the supranational level for the Court to use as a reference and draw inspiration from when making its assessments in these cases. Although the Court is not bound by precedent from the international treaty bodies, it does draw on such decisions where relevant. Without such precedent, it is difficult to anticipate what tack the Court will take in its interpretation of the Convention with respect to the health impacts of climate change. The absence of culture-focused arguments among the pending cases indicates that there is scope for prospective (Indigenous) litigants to explore such arguments in new claims. Doing so would help demonstrate the differentiated impact of climate change in a landscape that is, at present, focused on more generalized impacts. In addition, the invocation of cultural arguments would allow the Court to clarify the implications of climate-driven interferences with the Convention beyond health impacts alone. With that said, it ought to be borne in mind that success of such arguments before the Human Rights Committee does not necessarily guarantee success before the ECtHR. Likewise, despite absence of successful health-focused claims internationally, this need not imply unsuccessful outcomes in pending cases.
In conclusion, while the difference in litigation strategy detected does not automatically imply a greater or lower chance of success in cases pending before the ECtHR, it does suggest that judgments will only provide insight into human rights obligations related to a limited set of climate change impacts, specifically those regarding health, and primarily in relation to majority populations.