Climate litigation against Italy before the European Court of Human Rights
Climate litigation haw been growing exponentially before both national and international courts. It mainly addresses state responsibility for greenhouse gas emissions and climate (in)action, as proven by the international data-bases on climate litigation of the Sabin Center for Climate Change Law at Columbia Law School and the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science.
Italy itself has not been exonerated by climate cases: after A Sud et al. v. Italy, i.e. the first Italian “climate-case”, brought by an NGO and more than 200 plaintiffs before the civil court of Rome in 2021, other cases have been filed before national judges as well as administrative authorities (for further details, see https://climatecasechart.com/non-us-jurisdiction/italy/). Most recently, climate litigation against Italy has also reached the European Court of Human Rights (ECtHR) with Duarte Agostinho and Others v. Portugal and 32 Others, application no. 39371/20, and two “twin complaints”, Uricchio v. Italy and 31 Others, application no. 14615/21, and De Conto v. Italy and 32 Others, no. 14620/21. The first one was brought by Portuguese youth, whereas the twin complaints were filed by two Italian young citizens. All three of them address more than 30 defendant states, including Italy.
The claimants of Duarte, De Conto and Uricchio argue that the defendants have not implemented proper measures to hinder climate change and contain global warming, as provided by the Paris Agreement of 2015, especially with respect to the obligation to reduce the emissions of GHG. According to them, their physical and mental health, the environment, and the rights of future generations are at risk. Therefore, they claim the violation of Articles 2 and 8 ECHR, Art. 14 ECHR in regard to the discrimination between present and future generations, as well as Article 13 ECHR for the lack of effective remedies at the national level.
As well known, the Paris Agreement of 2015 set the goal of limiting the raise of global temperatures under 2°C, preferably 1.5°C, above pre-industrial levels. To reach such goal, its Parties are required to adopt mitigation measures, aiming, inter alia, at reducing the emissions of GHG, and adaptation measures, in order to adjust the ecological, social, and economic systems in response to climate change. The Agreement – thus fur signed and ratified by 196 Parties, including Italy and the European Union – is the first international binding instrument to reach almost the whole international community, which contributes to more than 98% of the GHG emissions globally.
In the above mentioned climate litigation pending against Italy, two main issues arise at the procedural level: whether the claimants will be recognized as “victim” under Article 34 ECHR, which implies a sufficiently direct link between the claimants and the alleged violation, and whether the non exhaustion of national remedies under Article 35 ECHR will be considered by the ECtHR as a cause of inadmissibility.
On the merits, Duarte (followed by De Conto and Uricchio) addresses for the first time two issues before the ECtHR: the responsibility of states for their climate (in)action vis-à-vis future generations, and their extraterritorial responsibility for the GHG emissions originating from their territory. With regard to the former, the claimants base their arguments on Article 14 ECHR, which however does not mention the intergenerational principle as a criterion to assess discrimination. The basis for the protection of future generation may nonetheless be found in other provisions: an extensive interpretation has already led the ECtHR to recognize rights not explicitly declared in the ECHR. With regard to the latter issue, in order to establish the responsibility of one (or more) state(s), the violation of human rights must fall under its (or their) jurisdiction pursuant to Article 1 ECHR. According to the case-law of the ECtHR, the general rule is that states exercise jurisdiction on their territory; as an exception, their jurisdiction reaches extraterritorially if they exercise their effective control on the place abroad or on the person(s) addressed by the violation (see Banković and Others v. Belgium and 16 Other States, application no. 52207/99, and Al-Skeini and Others v. the United Kingdom, application no. 55721/07). GHG emissions transcend national borders and affect people (and the environment) worldwide, as proven by scientific reports such as the ones from the Intergovernmental Panel on Climate Change (IPCC). As a consequence, they potentially impair human rights of people in countries other than the one(s) of origin. However, it is still unclear whether states can be held responsible for the GHG originating from their territory (under their territorial jurisdiction) but whose effects take place beyond it (outside their territorial jurisdiction).
On 27 September 2023 the ECtHR held the hearing of Duarte; Uricchio and De Conto have been adjourned until the Grand Chamber decides the climate litigation already pending before it (i.e. Duarte, Verein Klimaseniorinnen Schweiz and Others v. Switzerland, application no. 53600/20, and Carême v. France, application no. 7189/21). What seems certain is that the outcome of these three cases will have an impact on Italy and its internal climate litigation, as well as on all the other defendant states and, most likely, the whole international community, which is awaiting the decision of the ECtHR on Duarte. It would be the first time for the ECtHR to address two delicate issues such as the intergenerational responsibility principle and the extraterritoriality of human rights vis-à-vis state climate (in)action.
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