Björn Hoops, Víðir Smári Petersen and Bram Akkermans on the three climate ECHR cases (Carême, Duarte Agostinho and KlimaSeniorinnen)
In this podcast Professor Björn Hoops, Professor of Private Law and Sustainability at the Rijksuniversiteit Groningen in the Netherlands, Víðir Smári Petersen, Associate Professor of Law at The University of Iceland in Reykjavik, and I, Bram Akkermans, Professor of Property Law and Sustainability at Maastricht University in the Netherlands, discuss these three climate cases.
We first discuss the cases in general, after which we highlight important issues, raise questions on what the court did, talk about remedies under the Convention and possibly national law, and we will look at the possible future now that these cases have been decided. We reflect on issues of constitutional, private law, public law, and human rights law.
In the second part, we add our joined expertise in the area of property law to this. Although these cases were not argued on the basis of an infringement to property rights as protected under Article 1 of the First Protocol of the European Convention on Human Rights (A1P1) there is a very strong link in the case law of the Court between Articles 2, 8 and A1P1. We therefore explore future possibilities relating to claims to protection of property for climate change.
In the podcast we specifically refer to paragraph 420 of the KlimaSeniorinnen judgment, which reads:
"420. In this connection, the Court notes that, in the specific context of climate change, intergenerational burden-sharing assumes particular importance both in regard to the different generations of those currently living and in regard to future generations. While the legal obligations arising for States under the Convention extend to those individuals currently alive who, at a given time, fall within the jurisdiction of a given Contracting Party, it is clear that future generations are likely to bear an increasingly severe burden of the consequences of present failures and omissions to combat climate change (see paragraph 119 above) and that, at the same time, they have no possibility of participating in the relevant current decision-making processes. By their commitment to the UNFCCC, the States Parties have undertaken the obligation to protect the climate system for the benefit of present and future generations of humankind (see paragraph 133 above; Article 3 of the UNFCCC). This obligation must be viewed in the light of the already existing harmful impacts of climate change, as well as the urgency of the situation and the risk of irreversible harm posed by climate change. In the present context, having regard to the prospect of aggravating consequences arising for future generations, the intergenerational perspective underscores the risk inherent in the relevant political decision-making processes, namely that short-term interests and concerns may come to prevail over, and at the expense of, pressing needs for sustainable policy-making, rendering that risk particularly serious and adding justification for the possibility of judicial review."
More information on the climate cases can be found at: https://www.echr.coe.int/w/grand-chamber-rulings-in-the-climate-change-cases
More academic work on A1P1 ECHR: M. Habdas, B. Hoops, E. Marais, H. Mostert, J. Sluysmans and L. Verstappen (Eds.), Rethining Expropriation Law IV. Things for Climate Justice and Resilience (The Hague: Eleven International, 2024).
We welcome responses and are happy to further elaborate on the judgements and their impact.
