Strasbourg's bold intervention in climate issues

A few days ago, on November 30, 2020, the European Court of Human Rights, or said otherwise, the Strasbourg Court, through an official communiqué, revealed a very interesting and very courageous decision, which will no doubt be an important point of reference to its jurisdiction in the future in environmental and climate change issues, very sensitive issues, and these with a high priority in present conditions for the entire international community.

More specifically, the Court's communiqué suggests that based on the Article 41 of its internal regulation, this Court (fourth session) had acknowledged that on October 13, 2020, to deal with accelerated or urgent individual requirements set forth in Strasbourg on September 7th of this year (2020) of six young Portuguese children and youth (age 8, 12, 17, 20, and 21) against the 33 most industrialised European states, which, according to them, individually, by not taking concrete measures for the apparent reduction of the progressive effect of the carbon show in the atmosphere that we foresee the Paris Agreement, 33 most industrialised states, and their private health rights, and the 3th right of human rights to human rights and property, and, respectively, and the 1st right to human rights to human rights and to human rights to human rights, and to human rights to human rights and to human rights, and to human rights and to human rights, and to human rights, and to human rights to human rights, and to human rights, and to human rights to human rights and to human rights and to human rights and to human rights and to human rights, respectively. Among other things, the requirements point out that numerous fires in Portugal in recent years, particularly those in 2017, are the result of dramatic climate change, a situation that is increasing year-on-year, causing significant damage and disorders in daily life, not only during the summer season but also in other seasons of the year.

However, it is pointed out that the most difficult period is that of wine, where, due to long - term fires and droughts, there is loss of human life and damage to flora and fauna; lack of sufficient water for personal use, family use, as well as agriculture and livestock; temperatures over 40 degrees cause health problems, insomnia, allergies, respiratory difficulties, extreme reduction of physical activity, closure or normal failure of other schools. Moreover, this July (2020) of this year, with temperatures of up to 44 degrees Celsius, notes the top record of the past 90 years, but most likely, if the right measures are not taken, will be repeated more frequently in the future, even increasing temperatures year-on-year, which can simultaneously cause environmental disasters.

As of this, it is noted that in judging claims raised by six researchers, not only violations of the provisions of the European Convention on Human Rights cited above should be considered but also standards of other important principles of International Law. Among them is particularly cited in the first paragraph of Article 3 of the UN Convention on the Rights of the Children, which requires that “should be considered in each case. And the important principle of International Law, that normal right and demand for sustainable development should always take into account the “... the rights and interests of the present generations, as well as the generations to come...”. It is renewed in this case that both of the above principles have remained almost non-species, since practically, in the hands of youth, much less children, there is no effective tool at the national or international level to allow them to raise their voices in defense of their legitimate interests.

Among the 33 indicted states are all members of the European Union (27 states), as well as Britain, Norway, Switzerland, Russia, Turkey and Ukraine. The six Portuguese youth's demands, also drafted with the help of a London law office, are also officially supported by the internationally recognised organisation Global Legal Action Network (GLAN).

The European Court of Human Rights's special decision-making, clearly noted in the communiqué of November 30th, is that the court agreed to immediately initiate the investigation procedure in question, initially being sent and at the same time to the 33 indicted European states, which they must answer individually within a set deadline. These questions involve:

1. A) The question of their jurisdiction (all 33 indicted states) - Article 1 of the Convention, which requires each member state to secure within the scope of its jurisdiction everyone (every individual) guaranteed rights in the Convention. The specific question is whether these rights include obligations that arise from ratification of other international agreements (in the concrete case of the Paris Agreement on Climate, 2016) taken up by individual or collectively member states. ;
2. b) Whether researchers can be considered the actual or potential victims of a concrete violation by the states of their right in the sense of Article 34 of the Convention (because of not taking measures to reduce the greenhouse effect on respective territory), with serious consequences to their lives and health... ;
3. C) If the researchers' claims can also qualify as violations of the respective provisions of the European Convention on Human Rights (nenets 2.3.8,14 and Article 1 Prot.1) and others.

This is, in fact, a spectacular development in the field of international human rights protection. It's the first case of this kind, where the application presented in the ECHR, which simultaneously represents the most effective mechanism for guaranteeing individual rights, gets its clear attention, although the search facility has climate change and environment issues, which obviously are not directly linked to the Convention provisions.

Moreover, on the national level there has been no treatment or review of the claims of six researchers in any of the 33 states indicted. So far, particular and extremely spordical issues of this nature have been addressed by Strasbourg only in a concrete context, in terms of a certain issue allegedly violates civil and political rights guaranteeing the Convention, and only after all domestic means of national complaint have been exhausted. On the other hand, the area of appreciation normally left to countries for environmental problems is very broad for their very specific nature.

For these very reasons, there has been much debate and discussion about the steps Strasbourg takes to address the matter in question. The 33 countries are concerned about the answers they have to give, the more they have, in fact, that their lawmakers have reacted so far very little or nothing to respect the goals of the Paris Agreement on the 2016 Climate, especially for progressive reductions to zero percent in 2050 of carbon gas in the atmosphere. On the other hand, activists, groupings, and various national and international associations engaged in environmental issues are quite enthusiastic. They feel that the urgent treatment of claims, as well as the questions sent to 33 indicted states, is a good signal indicating that the demands of Portuguese youth have been taken seriously and that these demands can then overcome the terms of the dedication envisioned in Article 35 of the Convention to further pave the way for their underlying examination.

Among other things, they point out that in addition to the matter of jurisdiction and hurt competence, the failure of internal means in the 33 countries indicted can be tolerated and justified exclusively by the ECHR, just as it does in other analog cases, but very rare, with the physical inefficiency of six children or young people to follow cases in all these countries, with excessive time and expense that would require consideration in all other judicial cases, including their Supreme Constitutional Courts and other courts. Moreover, they rightly stress that even at the national level, courts of all institutions have almost always refused to play an active role in giving way and practical solutions to constitutional statements on environmental issues, and to force their respective governments to do more in this regard.

In this case, only a very positive decision by the Netherlands High Court last year (2019) is cited, which, in the matter of researching environmental association “Urgenda” against the state of the Netherlands, obliges the country to comply with international constitutional obligations starting in 2020, to take effective measures to reduce 25 percent of the country's carbon gas. Similar issues have been found in the Supreme and Constitutional courts of other European states, including member states of the European Union, but there are still no such decisions of the size and standards currently sought through six researchers at the European Court of Human Rights.

Of course it should wait. Developments or prospects on environmental issues that will arise from Strasbourg's decision in question will be not only very interesting but also very useful. If the demands of six Portuguese children and youth are accepted, the governments of 33 countries indicted will be obliged to adopt such policies as soon as possible in order to comply with the obligations of the Paris Agreement on Climate, 2016. On the other hand, the direct involvement of the Strasbourg Court on climate issues would also increase significantly in the future. After all, six Portuguese researchers at the European Court of Human Rights really do so.