A Criminal Law Response to Climate Change: Positive Obligations under the ECHR?

By Sjoerd Lopik

The past decade has seen a significant rise in interest in climate obligations under the European Convention on Human Rights (ECHR). There is an almost unanimous opinion in literature that climate change can lead to far-reaching violations of human rights. Mary Robinson, former United Nations High Commissioner for Human Rights, even deems global warming ‘the greatest human rights challenge of the twenty-first century‘ (as quoted in this article). This raises the question of whether the ECHR can oblige the use of criminal law to mitigate climate change. After all, as I will set out in this article, the European Court of Human Rights (ECtHR) forces Member States to use criminal law in the event of certain severe human rights violations.

1. INTRODUCTION

Within the legal response to climate change, there is an increasing focus on the use of criminal law. While there were hardly any criminal climate cases a couple of years ago, such investigations are now emerging. These include recent allegations by the German prosecution service against DWS, a subsidiary of Deutsche Bank, of inflation of its climate credentials (link). Moreover, in Massachusetts, public prosecutors are investigating ExxonMobil for alleged deceptive practices to investors by failure to disclose climate change risks (link). Furthermore, there is a growing body of climate legislation, violations of which can often lead to criminal prosecution (see this article, in Dutch). This article investigates whether there may be an obligation for Member States of the ECHR to engage criminal law in these, or similar, matters.

The ECtHR, in certain cases, obliges Member States to use criminal law. The role of human rights in criminal law has traditionally been associated with the rights of the accused in vis-à-vis the authorities prosecuting them. In addition to this shield function or ‘defensive role‘ of human rights in criminal law, human rights courts are increasingly issuing judgments from which a sword function or ‘offensive role‘ of criminal law follows. The ECHR leads, among other things, to obligations for Member States to criminalise certain behaviours, to conduct criminal investigations and even to punish. According to the ECtHR, the use of criminal law helps Member States to prevent future violations of human rights.

In this contribution, I will first focus on ECtHR jurisprudence relevant to (a) climate change obligations, and (b) positive obligations to use criminal law. I will explore these obligations in sections 2 and 3, respectively, of this article. Since this article is not the place for an exhaustive analysis of both topics, I will only focus on the sub-topics that need to be discussed in order to arrive at the findings in section 4. In that section, I will combine both topics by examining whether the ECHR demands the use of criminal law in the area of climate change mitigation. In the conclusion in section 5, I will look at what the future might bring for this topic.

2. CLIMATE CHANGE OBLIGATIONS UNDER THE ECHR

Before discussing the positive obligations to use criminal law, it is important to explain some matters regarding the climate obligations arising from the ECHR. The most prominent procedure on that subject has been the Urgenda case, which took place before Dutch courts. The case led to an order to the Dutch state to reduce greenhouse gas emissions. This order was based on the right to life (Article 2 ECHR) and the right to respect for private and family life (Article 8 ECHR). A former president of the ECtHR commented positively on the Urgenda judgment of the Dutch Supreme Court: ‘By relying directly on the Convention, the Dutch judges highlighted the fact that the European Convention of Human Rights really has become our shared language and that this instrument can provide genuine responses to the problems of our time‘ (see this speech). For an overview of the consequences of the Urgenda judgment, see my previous contribution to Strasbourg Observers.

The ECtHR itself has not yet issued any judgments on climate change, but this may change with, inter alia, the Swiss Senior Women for Climate Protection case and the Portuguese Youth case. The applicants in these cases follow an argumentation that is quite similar to the one presented in the Urgenda case. The ECtHR will deal with these as a matter of priority. A hearing in the Swiss case was held last week, on 29 March 2023. The Portuguese case will be heard at a later stage in 2023 (see this press release of the ECtHR). In addition to these cases before the Strasbourg Court, the Urgenda case has inspired parties in various Member States to bring similar climate cases before their national courts (see this overview of the Urgenda Foundation). It is not unlikely that some of these proceedings will end up before the ECtHR, given the fact that many of these cases largely rely on ECtHR case law.

Legal analyses of climate obligations under the ECHR often seek connection with the environmental case law of the ECtHR. The ECHR offers protection against environment-based human rights violations, and the ECtHR has already issued more than 300 judgments in this area. In environmental cases, the guiding principle for the ECtHR is that Member States should actively protect citizens against imminent dangers. Member States must intervene if they know, or should have known, of a ‘real and immediate risk‘ to human life. Examples of environmental judgments in which this principle was applied are the Öneryildiz judgment, the Budayeva judgment and the Kolyadenko judgment. The ‘real and immediate risk‘ criterion may well be applied to climate change, as was established in the Urgenda judgment of the Dutch Supreme Court.

3. POSITIVE OBLIGATIONS TO USE CRIMINAL LAW

The ECtHR has formulated positive obligations to use criminal law. It bases these obligations on several considerations. In most cases, the ECtHR points out that the use of criminal law reduces the likelihood of future human rights violations through ‘deterrence‘. The positive obligations to apply criminal law can be divided into several sub-obligations. In the following paragraphs, I will discuss the obligations of criminalisation, criminal investigation and punishment (for an extensive overview of such positive obligations, see this book).

The ECtHR has extensively expressed its view on criminalisation. Initially, the ECtHR came to negative obligations in this context, such as a ban on criminalising sexual acts between consenting adults of the same gender (for an overview, see p. 197 of this book). The ECtHR is now also increasingly creating positive obligations to criminalise certain behaviours in order to protect human rights. The obligation to criminalise behaviour stems from a variety of provisions in the ECHR and applies, for example, to homicide, slavery and sexual abuse.

In addition to obligations to criminalise certain behaviours, the ECHR may also lead to an obligation to engage in criminal investigations. The purpose of this obligation is ‘to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility’ (see paragraph 111 of the McKerr case). As with the obligation to criminalise, the ECtHR will be more inclined to formulate an obligation for criminal investigation if the conduct in question generally leads to a criminal investigation within the Member States. If there is no consensus between Member States to use criminal law for a certain issue, it is unlikely that the ECtHR will find positive obligations to do so (see, for example, paragraph 93 of the Öneryildiz judgment).

Under certain circumstances, the ECHR may also impose an obligation to punish. The case law of the ECtHR in this respect has been changing. In earlier judgments, the ECtHR emphasised that the ECHR would never make it an obligation to punish (see, for example, paragraph 111 of the Tanli judgment). Yet, the ECtHR has more recently ruled that the ECHR demands punishment in certain cases. The ECtHR even increasingly looks at the punishment imposed to determine whether a Member State has fulfilled its positive obligations (for an overview, see p. 276 and 277 of this book). The ECtHR itself cannot, of course, impose a criminal conviction in such cases; it can only call a Member State to account if there was no, or an inadequate, punishment.

Positive obligations to use criminal law are often associated with obligations to prosecute in response to excessive use of force by government officials. However, the ECHR can also compel the use of criminal law in cases of culpability in environmental disasters. In fact, the three aforementioned environmental cases (the Öneryildiz judgment, the Budayeva judgment and the Kolyadenko judgment) all led to positive obligations to use criminal law against the responsible authorities involved.

The ECtHR views criminal law as one instrument within a broad legal arsenal that allows Member States to respond to human rights violations. In principle, Member States are given a margin of appreciation to decide which means to employ (see, for example, paragraph 55 of the Cevrioğlu judgment). Under certain circumstances, the use of private law, administrative law or disciplinary law may be sufficient. Although other areas of law can also provide relief after human rights violations, it is clear that in some cases only criminal law will suffice. Member States are obliged to use criminal law for ‘serious abuses’ (see page 118-119 of this book).

4. AN OBLIGATION TO USE CRIMINAL LAW IN RELATION TO CLIMATE CHANGE

The above leads to the question of whether the ECHR can oblige Member States to use criminal law to combat climate change. Climate change can have a huge impact on human rights and in such cases the ECtHR may conclude that criminal law must be used. The case law of the ECtHR certainly offers starting points to argue that Member States must indeed employ criminal law to combat climate change.

Firstly, the threatening consequences of climate change could justify the use of criminal law. After all, the ECHR demands the use of criminal law in the event of the most serious human rights offences. These are cases in which fundamental values or essential aspects of human dignity are at stake. Based on the imminent disastrous consequences of climate change, it could be reasonably argued that actions in the area of climate change may qualify as such. The World Health Organisation estimates that between 2030 and 2050, climate change will cause 250,000 deaths annually (see this fact sheet). The consequences of the disasters for which the ECtHR demanded the use of criminal law, terrible as they were, shrink into insignificance compared to these numbers. Based solely on the predicted consequences of climate change, it is therefore defensible that criminal law should also be used in this area.

Moreover, a comparison between climate change and the judgments in which the ECtHR arrives at positive obligations to use criminal law after environmental disasters yields some similarities. Firstly, both the climate issue and the environmental disasters in these judgments involve known risks of human rights violations. In the Öneryildiz, Budayeva and Kolyadenko judgments, the responsible government body was warned several times about imminent dangers. Warnings also exist in the field of climate change. Such warnings come from, inter alia, widely accepted and scientifically supported findings, such as the reports of the Intergovernmental Panel on Climate Change. Secondly, with regard to both the climate issue and these judgments, it is somewhat clear what steps should be taken to mitigate these dangers. The factual background of these judgments shows that it was known what measures the government body or government official had to take to avert the identified risks. With respect to global warming as well, measures can be taken to mitigate the issue, i.e. policies that limit the amount of greenhouse gases in the atmosphere. Thus, there are similarities between the facts of climate change and the environmental disasters of these ECtHR judgments.

Despite these points arguing for positive obligations to use criminal law in the area of climate change, the ECHR probably does not demand this at the moment. The main reason for this is that it is currently not common practice to use criminal law to combat global warming. After all, one of the most important criteria for positive obligations to use criminal law is whether there is consensus to use criminal law for the conduct concerned. In the area of climate mitigation policy, this consensus does not exist. On the contrary, literature indicates that, although the number of climate cases is growing rapidly, these cases are rarely criminal (see, for example, page 42 of this LSE report). It should be noted here that consensus may be subject to change. The dynamic interpretation of the ECtHR may mean that, in the future, the ECHR will force the use of criminal law in this area. I will return to this point in the conclusion of this article.

The ‘margin of appreciation‘ also seems to stand in the way of positive obligations to use criminal law in the area of climate change. With such positive obligations, the ECtHR would dictate to Member States how they should meet their emission targets. After all, the ECtHR would then prescribe a specific measure designed to reduce greenhouse gas emissions. For the choice of means to respond to environmental issues, however, Member States in principle have a margin of appreciation. This is apparent from, among other things, a 2009 admissibility decision of the ECtHR in a case brought by Greenpeace against Germany (link). This ECtHR case followed proceedings before the German court in which Greenpeace sought specific measures to reduce car dust emissions. According to the ECtHR, Germany could not be forced to take such specific measures on the basis of the ECHR: ‘The choice of means as to how to deal with environmental issues is a matter falling within the Contracting State’s margin of appreciation in environmental matters.‘

Apart from the similarities discussed above, there are also significant differences between the climate issue and the aforementioned environmental disasters, in response to which the ECHR forced the use of criminal law. These stem in particular from the fact that in those judgments, the responsible individuals and bodies could have personally prevented the environmental damage. After all, those responsible had practical tools at their disposal to mitigate the entire risks concerned. In the area of climate change mitigation, no (legal) person can independently ensure that all consequences are averted. This makes it more difficult to formulate a sufficiently individualisable allegation of guilt on the basis of which criminal liability can be assumed. Governments and companies can take measures to mitigate climate change, but they cannot single-handedly enforce the ‘effective protection of citizens whose lives might be endangered by the inherent risks’ (see, for example, paragraph 158 of the Kolyadenko judgment).

5. CONCLUSION

It follows from the above that the ECHR is currently unlikely to force the use of criminal law in the area of climate change mitigation. This is mainly due to the fact that there is hardly any consensus between Member States on the use of criminal law in this area. It is important to note that this consensus may be subject to change. The ECHR is a ‘living instrument‘ and the ECtHR takes into account ‘present-day conditions‘ in its interpretation thereof. If ‘contemporary norms, standards and trends‘ change, this may lead to a different interpretation of the ECHR. This also applies to the subject matter of this contribution. It is likely that things will change in the enforcement of behaviour in the area of climate change. The next decade is expected to bring more clarity on how laws and regulations will contribute towards achieving emission targets. Various parties have already been calling for criminal law to be used more frequently in this regard.

Whether these and future developments will be so significant that the ECHR will eventually demand the use of criminal law, is difficult to say. After all, the first national criminal law cases in the climate field have only emerged in recent years. Another relevant factor is that the ECtHR does not exactly show itself from its most activist side when it comes to positive obligations to use criminal law. It seems cautious in such cases, as obligations only start to play a role when there is a significant degree of consensus between Member States on the issue concerned. As long as public prosecutors bring hardly any climate cases to court, the ECtHR will likely not force its Member States to do so.