October 19, 2021
While climate change is already ravaging many parts of the world, with its most devastating impacts on the poor and vulnerable, the spectre of climate catastrophe haunts children and young people everywhere. As States’ climate commitments and concrete actions are shown to be inadequate to avert the reaching of the tipping points David Attenborough warns about, the possibility of a world in which more and more forests turn into deserts, cities drown, animals perish, and human devastation, violence and conflict escalate is hardening into a near-certain prospect within children’s and young people’s lifetimes. This has led many children and young adults to experience a phenomenon referred to as ‘climate anxiety’, which involves constant feelings of fear, anguish and powerlessness regarding their own and their loved ones’ well-being, as well as more generalised, prolonged anxiety and uncertainty about the current state and future of the planet. That children and young people are forced to bear the brunt of climate change and that so many of them already experience such despair towards their future amounts to profound intergenerational injustice inflicted on younger generations by those that currently hold the key to averting the worst of climate change.
What I want to argue in this piece is that what children and young people are being subjected to through State (in)action on climate change can also be understood as amounting to ill-treatment, in contravention of one of the most fundamental norms of human rights law: the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
In Agostinho and Others v Portugal and others, a case currently pending before the European Court of Human Rights (‘ECtHR’, ‘the Court’), six Portuguese children and young adults (aged 8 to 21) are arguing that 33 Member States of the Council of Europe (all 27 EU Member States as well as Norway, Russia, Switzerland, Turkey, Ukraine and the United Kingdom) are violating their rights under the European Convention on Human Rights (ECHR) through their (in)action with respect to climate change.
Agostinho will have already caused substantial disquiet for the respondent States, which have been invited by the Court to address whether the applicants are victims of violations of the right to life (Article 2 ECHR), the right not to be subjected to torture or ill-treatment (Article 3 ECHR), and/or the right to private and family life (Article 8 ECHR), taken individually or in combination with the right not to be discriminated against (Article 14 ECHR), as well as the right to property (Article 1 of Protocol No 1 to the ECHR). The ECtHR raised the Article 3 question of its own motion, and did so even though this right has not featured in other breakthrough cases on climate change. While there is increasing acknowledgement of the impacts of environmental degradation and climate change on the right to life and the right to private and family life – as in the landmark 2019 Dutch Supreme Court judgment in Urgenda, for example – there is as yet little recognition of the way in which State (in)action with respect to environmental harm may dehumanise or degrade persons in violation of the right not to be subjected to torture and ill-treatment.
To unpack the principled basis on which a finding of such a violation can be made, I will briefly consider both the present and future implications of climate change for children and young adults such as the applicants in Agostinho in light of the ECtHR’s doctrine in a variety of contexts, including that of refoulement: the practice of forcibly subjecting persons to a real risk of torture or inhuman or degrading treatment or punishment by returning or removing them to another country.
What is being argued in Agostinho is that the respondent States are not complying with their obligations under the relevant rights – including Article 3 ECHR – read in light of their commitments under the 2015 Paris Agreement, which emerged out of COP21. The Paris Agreement can be taken to form the basis for delineating the measures States are duty-bound to undertake – including, as the applicants in Agostinho are arguing: a) adopting ‘deep and urgent’ reductions of the emissions on their territory and on the other territories over which they have jurisdiction; b) ending the export of fossil fuels; c) compensating for emissions arising from the import of goods; and d) limiting the contributions of multinational companies within their jurisdiction to global emissions through their activities abroad, all with a view to limiting temperature rise to 1.5°C in comparison with pre-industrial levels, it being understood that this would significantly reduce the risks and effects of climate change. Currently, all respondent States are failing to take the necessary measures that would ensure, if undertaken to an equivalent extent globally, a temperature rise of 1.5°C or under.
Whether a situation engages the right not to be subjected to torture or inhuman or degrading treatment or punishment enshrined in Article 3 ECHR is assessed in a context-sensitive way to determine whether it reaches a certain ‘minimum level of severity’ (Ireland v UK, para 162). Treatment causing ‘intense physical or mental suffering’ (Bouyid v Belgium, para 87) is often found to be inhuman. Treatment that ‘humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’ (Pretty v UK, para 52) or ‘inducing desperation’ (MSS v Belgium and Greece, para 263) may be found to be degrading, even in the absence of serious physical or mental suffering (Bouyid v Belgium, para 87) or of an intent to cause suffering to, humiliate or debase the person (ibid, para 86). More specifically, the ECtHR has associated inhuman and/or degrading treatment with situations creating ‘feelings of fear, anxiety and powerlessness’ (Volodina v Russia, para 75), rendering someone ‘afraid, depressed and hopeless’ (Premininy v Russia,para 81), causing someone ‘intense fear and apprehension’ (Akkoç v Turkey, para 116) or ‘constant mental anxiety’ (Rodić v Bosnia and Herzegovina, para 73) and involving both distress and ‘prolonged uncertainty’ (MSS v Belgium and Greece, para 263). The Court pays close attention to any vulnerability experienced by the (alleged) victim. A distressing situation is more likely to cross the threshold of severity when endured by a person whose vulnerability is pronounced, as is the case with children (Bouyid v Belgium, paras 109-110). In determining severity, the Court pays attention to the cumulative gravity of what someone experiences, and it has recognised that where a person’s circumstances disclose ‘no prospect of an improvement in the situation’, this compounds the gravity of the suffering endured (Clasens v Belgium, para 36).
The Agostinho applicants’ experience of climate change, like that of many children and young people around the world, corresponds in many respects to the dynamics of inhumanity and degradation described above: they are currently enduring prolonged and escalating fear, anguish and intense mental suffering because of anthropogenic climate change and its consequences – such as deadly forest fires occurring in their neighbourhoods – and facing the real prospect of catastrophic harm and further suffering befalling themselves and their loved ones. Given that children and young people are, on their own, unable to alleviate the phenomenon to which their fear attaches – even though many of them, including the applicants in Agostinho, have shown remarkable tenacity in pushing for the measures necessary to avert climate catastrophe, they cannot themselves effect the mass law and policy overhaul needed – they experience a sense of powerlessness, hopelessness or inferiority that is capable of breaking their spirit.With the ever-better-documented threat of climate apocalypse hanging over the younger generations, it is not surprising that a psychologist who specialises on climate anxiety in children and young people recently described it to me as comparable to the death row phenomenon. It is firmly established in Strasbourg doctrine that subjecting persons to the latter violates Article 3 ECHR.
Yes, one might say, there is, and there will be, a lot of suffering; but is there ill-treatment? It is possible to characterise State (in)action on climate change as ill-treatment. First of all, the ECtHR recognises that someone may be ill-treated through a legal regime (such as that enabling sentences of life imprisonment without any prospect of release) or through the imposition of systemically inhuman or degrading conditions for which responsibility is diffuse. In the context of anthropogenic climate change, the relevant States are actively pursuing policies that sustain or worsen the climate crisis and its consequences and creating the legal regimes and systemic conditions in which these impacts are occurring, worsening and spreading, notably by permitting and facilitating the release of harmful emissions.
Additionally, we may describe the escalating distress experienced by the applicants in Agostinho and other children and young people around the world as being met by an ‘attitude of disrespect’, a term employed by Elaine Webster to capture the sort of profound disregard for one’s humanity that is incompatible with human dignity. The ECtHR’s case law on the response of State authorities to matters ranging from serious socioeconomic deprivation to disappearances and interpersonal violence establishes as a matter of principle that an attitude of indifference or disregard by State authorities towards serious or potentially irreparable human suffering that the State is aware of and in a position to alleviate is at odds with the right not to be subjected to ill-treatment. In the case of climate change, States such as the respondents in Agostinho are causing, compounding and failing to alleviate anthropogenic climate change through what can only be described as systemic disregard – or, at least, discounted regard – for the plight of younger generations. That they are doing so within a context characterised by profound power asymmetry and the augmented vulnerability experienced by children in particular deepens the severity of their wrongdoing.
To further underline the point that States are subjecting children and young people to inhumanity and degradation, or at least a real risk thereof, I would suggest that there is something here that is meaningfully analogous to the practice of refoulement. It is well established as a matter of human rights law that forcibly removing someone to a place where there are substantial grounds for believing they face a real risk of torture or inhuman or degrading treatment violates their right not to be subjected to torture or ill-treatment. The obligation against refoulement under the right not to be subjected to torture or ill-treatment is absolute, and reflects the broader principle that authorities must refrain from forcibly placing someone in a situation where they face a real risk of grave suffering or distress (an example of such an act outside of the refoulement context is the act of placing a vulnerable person in solitary confinement). While the ECtHR was initially hesitant to make pronouncements on prospective breaches of human rights, the rationale for doing so in cases of refoulement was the need to protect persons from irreparable harm.
Although the circumstances may appear quite distinct on the surface, States contributing to climate change are similarly subjecting children and young people to real risks of irreparable harm. The prospective crossing of irreversible tipping points means that today’s children and young people are facing real risks of loss of life and serious harm. These harms stand to materialise suddenly, through extreme weather events, natural disasters, infectious diseases and other ‘sudden-onset’ impacts of climate change and the psychological trauma emanating from such events, as well as in the form of escalating physical and mental suffering arising out of the ‘slow-onset’ impacts of climate change, including increased heat, drought, sea-level rise, water scarcity, food insecurity and air pollution, and, ultimately, the prospect of widespread violence, conflict and forced displacement in an increasingly inhospitable planet. The future is a foreign country, one might say: a dystopian place to which younger generations are currently being propelled through the collective (in)actions of those with the power to shape the course of climate change.
The escalating distress and dystopian future faced by the applicants in Agostinho and other children and young people around the world, which only the application of drastic individual and collective State action can address, is being met and compounded by official failings at best, and indifference or callous disregard at worst. Such an approach by State authorities stands fundamentally at odds with States’ duty under the Convention on the Rights of the Child to accord primacy to and act in accordance with the best interests of the child in all actions concerning children. The ECtHR is being asked to consider this issue, and the intergenerational injustice of the situation, in determining whether Convention rights have been violated in Agostinho. In doing so, the ECtHR should not ignore the discriminatory dimensions of current State (in)action on climate change, which condemns younger – and future – generations to bear the brunt of climate change, and the burden of the exponentially more onerous measures that will increasingly be required to address it given current failings. The discrimination at issue does not only engage Article 14 ECHR – it also goes to the heart of the right not to be subjected to torture or ill-treatment: as I argue elsewhere, othering persons, or treating them as being of fundamentally lesser worth, is central to the dehumanisation proscribed by Article 3 ECHR.
I have focused here on the substantive dimensions of Article 3’s application to State (in)action on climate change and chosen not to analyse other aspects of the Agostinho litigation, notably some key ‘hurdles’ the applicants need to clear, including the victim status requirement, the matter of jurisdiction, and the exhaustion of domestic remedies (on which an important climate change complaint recently stumbled before the Committee on the Rights of the Child). These matters are discussed elsewhere (see Clark, Liston and Kalpouzos, for example), and are the subject of persuasive arguments made in the application to the ECtHR as well as in a range of Third Party Interventions. Ultimately, the ECtHR must choose whether to address an issue that has been convincingly characterised as an unprecedented global threat to human rights, or to dismiss the case on the basis of a narrow formalism that it has (rightly) forgone elsewhere.
The future that younger generations and their children face can seem alien and distant, the true scope of the climate catastrophe currently being unleashed upon them almost unfathomable or, perhaps, too uncomfortable to process (although a series of recent events has offered all too many sobering opportunities to do so). Yet it is being shaped by the governments of today, and should be recognised as violating human rights – including, as I argued here, the right not to be subjected to torture or inhuman or degrading treatment or punishment – in the here and now.
This is a creative analysis, even if the creative elements seem to simply echo last year’s analysis by Corina Heri to which it links. I wonder, however, how plausible it is.
There are indeed various ways one could frame the article 3 issue. But the most plausible one, surely, is as an extension of the positive obligations case-law. One could see it as a growth of the ordinary article 3 case-law (whether the framework or the Osman duty) or as a growth of the specific environmental duty under arts 2 and 8 (as Dr Heri acknowledges). In both cases, the focus would be on the specific, primarily physical, harm that climate change itself might cause to these individuals in the future. That would raise the various causation and victim status issues raised in Question 2 of the Court’s communication report.
This analysis seems to allude to that possibility (in the paragraph beginning ‘Although the circumstances…’). But it does not seriously engage with it. Instead, it analyses at length three extensions of the case-law that seem rather more speculative: (1) that individuals’ current anxiety about climate change violates article 3, either in all cases or where they feel helpless about it; (2) that because climate change disproportionately affects children, the failure to act amounts to a violation of children’s and/or future generations’ dignity; and (3) this can be analysed to a ‘refoulment’ to a worse future..
Leaving to one side the offensiveness and implausibility of some of the comparisons that are offered to support this (notably analogising being on death row to climate anxiety), this seems to envisage an extension of the case-law with no limits. On (1), many people are deeply anxious about many political issues. We may see some of those anxieties as partly or wholly justified, and others as not. But the suffering is the same whether or nor we see them as justified. Article 3 cannot require that society be restructured around the subjective anxieties of particular groups, not least because different groups have different views. One might reply that this view is special because it is justified. But that brings the focus back to the point above – the *actual* risk of article 3-level harm in the future – and away from this subjectivist approach. The logic of (2) collapses article 3 into article 14/art.12P1: if all (in)action with disparate impact requires an attitude of othering (something that is not obvious), and all othering in fact undermines dignity, and all undermining of dignity violates article 3, then all discrimination violates article 3. That cannot be right. As to (3), it is true that the analogy to non-refoulement allows one to incorporate uncertainty into the question. But it is undermined by this claim’s collective angle. The applicants do not ask to be kept in the present moment. They ask for structural change to avoid the expected future materialising. The analogy would be more plausible if article 3 included a right to requires steps to alter the receiving society itself, e.g. to require that aid be given so a country stopped persecuting anyone. But that would clearly take article 3 too far, and the same is true of this interpretation.
If the ECtHR finds a violation or violations in this case, this will already involve radical extensions of the case-law and of human rights law’s reach. That may well be justified. But this will be more likely to happen, as well as more likely to effect change and avoid undermining the human rights system as a whole, if it is grounded in sound, limited extensions of the case-law.
*art.1P12, not art.12P1 – apologies.