Week 2
,Homework Assignment: Climate Change and Human Rights
The European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the EU
(the Charter) are regional human rights instruments, applicable to European states only (for the ECHR,
the 46 contracting states of the Council of Europe; for the Charter, the 26 Member States of the European
Union). Other regions of the world also have systems for the protection of human rights in place, for
example Africa with its African Charter for the Protection of Human Rights and Peoples’ Rights (1986). In
the African Charter, Article 24 protects the right to a satisfactory environment:
Article 24
All peoples shall have the right to a general satisfactory environment favourable to their
development.
a. Can you find a similar provision in the ECHR? If not, why would such a provision lack? And in
its absence, would it be possible to appeal to the protection provided by the right to a clean or
satisfactory environment under another provision in the ECHR?
There is no provision in the ECHR which also guarantees a right to a satisfactory environment. Maybe
there is no such provision because it could be protected under the Right to Life, art. 2 ECHR. The ECHR
sees to civil and political rights, as an interpretation of human rights. The ECHR was drafted in 1948, and
was therefore more about the state harming people, and protecting rights in that sense. The protection
against climate change was not considered back then.
In principle you can only appeal on the basis of the ECHR and its protocols, in front of the EHRM. It is
possible to appeal on the basis of other laws, such as the Charter of Fundamental Rights in Europe, or
case law from the court.
b. The Charter refers to environmental protection in Article 37. Reflect on the differences between
Article 37 of the EU Charter and Article 24 of the African Charter.
Art. 37 of the Charter states that the EU must integrate policies regarding a high level of protection for the
environment, and the improvement of the environment, in accordance with the principle of sustainable
development. This does not provide a general right to the public, in the way that art. 24 of the African
Charter does. The EU Charter gives the EU the assignment to make good policies surrounding the
environment, that is the biggest difference.
The EU Charter is however binding for all EU organisations, organs and institutions, so possibly people
from the EU could appeal on the basis of that article, but that might be more difficult.
, In September 2023, the European Court of Human Rights held a Grand Chamber hearing in the
case of Duarte Agostinho and Others v. Portugal and 32 Others. Duarte Agostinho and others (the
applicants) are six young citizens and residents of Portugal, who argue that their ECHR rights are violated
because of the effects of climate change, such as forest fires. They argue that the 33 European states
that signed the 2015 Paris Agreement on Climate Change are under an obligation to enact effective
domestic responses to climate change which satisfy what the applicants call the ‘overriding obligation’ of
meeting the aspirational 1.5C target in the Paris Agreement. The applicants claim that besides Portugal,
where they live, the other 32 European States are also responsible under the ECtHR. Hence, the
question of extra-territorial jurisdiction plays an important role in this case. Jurisdiction in human rights law
is primarily territorial, but emissions inevitably cause harm across borders. The question which the ECtHR
has to answer in the Duarte Agostinho Case is whether the specific features of the climate case require a
different approach to jurisdiction. The Inter-American Court of Human Rights and the UN Children’s
Rights Committee have recently held that States are accountable for activities that cause harm to children
in other States.
c. Reflect on whether climate cases require novel approaches to jurisdiction under Article 1
ECHR. In your answer, you engage with the ECtHR judgment in Al Skeini in which the ECtHR
mentioned a number of situations in which states are bound to respect and protect human rights
outside their territories under Article 1 ECHR.
The difficulty with climate cases is that the issues coming from pollution do not know borders, the pollution
comes from one country and can flow over to other states. The question is then, if we can hold the state
where the pollution comes from, accountable.
States are bound to the ECHR, when they act within their jurisdiction. When states act within their
jurisdiction, has been decided in the Case of Al Skeini. In principle this jurisdiction stems from territoriality,
but there are other ways in which a state can have jurisdiction: with regards to acts of its authorities which
produce effects outside of its own territory, or when they have effective control of an area.
The situations in which states are bound to respect and protect human rights outside their territories,
under art. 1 ECHR, are when:
1. There are acts of a state’s authorities which produce effects outside its own territory, it is only
necessary for a state to be “involved” in those circumstances (12). (State agent authority and
control)
a. Acts of diplomatic and secular agents, who are present of foreign territory, in accordance
with international law, may amount to an exercise of jurisdiction, when they exert control
and authority over others.
b. Through consent, invitation or acquiescence of the Government of that territory, to then
exercise some or all of the powers from that government
c. When an officer of a state uses force outside its own territory
2. A state exercices effective control over an area, whether it be directly or indirectly
In this case it could be about the jurisdiction coming from the effective control over an area, since actions
from those 32 other states have (according to the applicants) a direct impact on the citizens in Portugal.
So while those states do not exercise effective control over other areas outside their territory, but they do
control the harmful activities within their territory, that affect areas other states. Where a state exercises
effective control, they have to take human rights into account. But effectively, climate change probably
can not fall under this definition, and therefore the other 32 states do not have jurisdiction, and cannot be
held accountable on the basis of the ECHR (from the slides).
, In class assignment
1a Yes, Futuro Vegetal has rights protected under art. 1 protocol 1 of the ECHR. The article states that
every natural and legal person is entitled to the peaceful enjoyment of his possessions. An NGO is a legal
person, and therefore enjoys the right to possessions.
Legal persons consist of natural persons, which are the primary bearers of human rights. In that way it
makes sense that legal persons also sometimes enjoy those same rights. If legal persons did not receive
those rights, it would not be able to have an economy and society in which legal persons can partake. Of
course, in current society, legal persons are very present. Animals can never take part in economic or
societal activities, and therefore do not need those human rights. I do however believe that animal rights
should be protected, but they do not need to be the same as human rights.
1b The European Arrest Warrant is valid throughout all member states of the EU, of which the
Netherlands and Spain are both members. The EAW requires another member state to arrest and
transfer a criminal suspect or sentenced person to the issuing state, so that person can be prosecuted or
complete their sentence.
Can Corrie appeal to the Charter? Art. 51 (1) of the Charter says that the EU institutions, organs and
agencies are bound by the Charter. The member states are only bound by the Charter when they act
within the scope of EU law, which can be interpreted broadly according to the case of Akerberg/Franssen
(17-21). If it concerns an area where EU law is present, implementing is present. In this case, Spain
definitely acts within this scope, seeing that police cooperation is within the competences of the EU.
It does not matter whether Spain has a monist or a dualist system, because EU law is directly applicable
on the basis of the case of Van Gend en Loos.
Corrie could appeal to art. 47 of the Charter, the right to an effective remedy and to a fair trial, and also
art. 48 of the Charter, the right to defence. The lawyer could argue that Corrie should not be surrendered
to the Netherlands, as they have not guaranteed her right to a fair trial and the right to a defence.
1c The CJEU ruled in the case of the Internationale Handelsgesellschaft & Melloni that EU law takes
precedence over national law, even over national constitutions. The validity of the EU law cannot be
tested against national laws, to guarantee an equal application of EU law everywhere. The Spanish
authorities are right.
Art. 52 (4) says that articles from the Charter should be in harmony with the national constitutions,
corresponding with art. 6 TEU.
1d Art. 6 (3 sub c) ECHR gives the right to access to a fair trial, so for people to defend themselves, either
in person or with legal assistance. Art. 6 (3) gives all kinds of positive obligations to the states, and in art.
1 and 2 there are some negative obligations. If someone cannot pay for legal representation, they should
be granted this for free, when the interests of justice so require.
So no, Corrie should not automatically receive free representation. Only if they truly cannot afford it, and
representation is warranted, they should be granted this. This was also represented in the case of
Airey/Ireland.
,Homework Assignment: Climate Change and Human Rights
The European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the EU
(the Charter) are regional human rights instruments, applicable to European states only (for the ECHR,
the 46 contracting states of the Council of Europe; for the Charter, the 26 Member States of the European
Union). Other regions of the world also have systems for the protection of human rights in place, for
example Africa with its African Charter for the Protection of Human Rights and Peoples’ Rights (1986). In
the African Charter, Article 24 protects the right to a satisfactory environment:
Article 24
All peoples shall have the right to a general satisfactory environment favourable to their
development.
a. Can you find a similar provision in the ECHR? If not, why would such a provision lack? And in
its absence, would it be possible to appeal to the protection provided by the right to a clean or
satisfactory environment under another provision in the ECHR?
There is no provision in the ECHR which also guarantees a right to a satisfactory environment. Maybe
there is no such provision because it could be protected under the Right to Life, art. 2 ECHR. The ECHR
sees to civil and political rights, as an interpretation of human rights. The ECHR was drafted in 1948, and
was therefore more about the state harming people, and protecting rights in that sense. The protection
against climate change was not considered back then.
In principle you can only appeal on the basis of the ECHR and its protocols, in front of the EHRM. It is
possible to appeal on the basis of other laws, such as the Charter of Fundamental Rights in Europe, or
case law from the court.
b. The Charter refers to environmental protection in Article 37. Reflect on the differences between
Article 37 of the EU Charter and Article 24 of the African Charter.
Art. 37 of the Charter states that the EU must integrate policies regarding a high level of protection for the
environment, and the improvement of the environment, in accordance with the principle of sustainable
development. This does not provide a general right to the public, in the way that art. 24 of the African
Charter does. The EU Charter gives the EU the assignment to make good policies surrounding the
environment, that is the biggest difference.
The EU Charter is however binding for all EU organisations, organs and institutions, so possibly people
from the EU could appeal on the basis of that article, but that might be more difficult.
, In September 2023, the European Court of Human Rights held a Grand Chamber hearing in the
case of Duarte Agostinho and Others v. Portugal and 32 Others. Duarte Agostinho and others (the
applicants) are six young citizens and residents of Portugal, who argue that their ECHR rights are violated
because of the effects of climate change, such as forest fires. They argue that the 33 European states
that signed the 2015 Paris Agreement on Climate Change are under an obligation to enact effective
domestic responses to climate change which satisfy what the applicants call the ‘overriding obligation’ of
meeting the aspirational 1.5C target in the Paris Agreement. The applicants claim that besides Portugal,
where they live, the other 32 European States are also responsible under the ECtHR. Hence, the
question of extra-territorial jurisdiction plays an important role in this case. Jurisdiction in human rights law
is primarily territorial, but emissions inevitably cause harm across borders. The question which the ECtHR
has to answer in the Duarte Agostinho Case is whether the specific features of the climate case require a
different approach to jurisdiction. The Inter-American Court of Human Rights and the UN Children’s
Rights Committee have recently held that States are accountable for activities that cause harm to children
in other States.
c. Reflect on whether climate cases require novel approaches to jurisdiction under Article 1
ECHR. In your answer, you engage with the ECtHR judgment in Al Skeini in which the ECtHR
mentioned a number of situations in which states are bound to respect and protect human rights
outside their territories under Article 1 ECHR.
The difficulty with climate cases is that the issues coming from pollution do not know borders, the pollution
comes from one country and can flow over to other states. The question is then, if we can hold the state
where the pollution comes from, accountable.
States are bound to the ECHR, when they act within their jurisdiction. When states act within their
jurisdiction, has been decided in the Case of Al Skeini. In principle this jurisdiction stems from territoriality,
but there are other ways in which a state can have jurisdiction: with regards to acts of its authorities which
produce effects outside of its own territory, or when they have effective control of an area.
The situations in which states are bound to respect and protect human rights outside their territories,
under art. 1 ECHR, are when:
1. There are acts of a state’s authorities which produce effects outside its own territory, it is only
necessary for a state to be “involved” in those circumstances (12). (State agent authority and
control)
a. Acts of diplomatic and secular agents, who are present of foreign territory, in accordance
with international law, may amount to an exercise of jurisdiction, when they exert control
and authority over others.
b. Through consent, invitation or acquiescence of the Government of that territory, to then
exercise some or all of the powers from that government
c. When an officer of a state uses force outside its own territory
2. A state exercices effective control over an area, whether it be directly or indirectly
In this case it could be about the jurisdiction coming from the effective control over an area, since actions
from those 32 other states have (according to the applicants) a direct impact on the citizens in Portugal.
So while those states do not exercise effective control over other areas outside their territory, but they do
control the harmful activities within their territory, that affect areas other states. Where a state exercises
effective control, they have to take human rights into account. But effectively, climate change probably
can not fall under this definition, and therefore the other 32 states do not have jurisdiction, and cannot be
held accountable on the basis of the ECHR (from the slides).
, In class assignment
1a Yes, Futuro Vegetal has rights protected under art. 1 protocol 1 of the ECHR. The article states that
every natural and legal person is entitled to the peaceful enjoyment of his possessions. An NGO is a legal
person, and therefore enjoys the right to possessions.
Legal persons consist of natural persons, which are the primary bearers of human rights. In that way it
makes sense that legal persons also sometimes enjoy those same rights. If legal persons did not receive
those rights, it would not be able to have an economy and society in which legal persons can partake. Of
course, in current society, legal persons are very present. Animals can never take part in economic or
societal activities, and therefore do not need those human rights. I do however believe that animal rights
should be protected, but they do not need to be the same as human rights.
1b The European Arrest Warrant is valid throughout all member states of the EU, of which the
Netherlands and Spain are both members. The EAW requires another member state to arrest and
transfer a criminal suspect or sentenced person to the issuing state, so that person can be prosecuted or
complete their sentence.
Can Corrie appeal to the Charter? Art. 51 (1) of the Charter says that the EU institutions, organs and
agencies are bound by the Charter. The member states are only bound by the Charter when they act
within the scope of EU law, which can be interpreted broadly according to the case of Akerberg/Franssen
(17-21). If it concerns an area where EU law is present, implementing is present. In this case, Spain
definitely acts within this scope, seeing that police cooperation is within the competences of the EU.
It does not matter whether Spain has a monist or a dualist system, because EU law is directly applicable
on the basis of the case of Van Gend en Loos.
Corrie could appeal to art. 47 of the Charter, the right to an effective remedy and to a fair trial, and also
art. 48 of the Charter, the right to defence. The lawyer could argue that Corrie should not be surrendered
to the Netherlands, as they have not guaranteed her right to a fair trial and the right to a defence.
1c The CJEU ruled in the case of the Internationale Handelsgesellschaft & Melloni that EU law takes
precedence over national law, even over national constitutions. The validity of the EU law cannot be
tested against national laws, to guarantee an equal application of EU law everywhere. The Spanish
authorities are right.
Art. 52 (4) says that articles from the Charter should be in harmony with the national constitutions,
corresponding with art. 6 TEU.
1d Art. 6 (3 sub c) ECHR gives the right to access to a fair trial, so for people to defend themselves, either
in person or with legal assistance. Art. 6 (3) gives all kinds of positive obligations to the states, and in art.
1 and 2 there are some negative obligations. If someone cannot pay for legal representation, they should
be granted this for free, when the interests of justice so require.
So no, Corrie should not automatically receive free representation. Only if they truly cannot afford it, and
representation is warranted, they should be granted this. This was also represented in the case of
Airey/Ireland.
