Intergenerational Justice before the European Court of Human Rights

The debates on intergenerational justice and climate change have increasingly raised in the past years. Therefore, it was only a matter of time before the European Court of Human Rights would be approached by today’s youth, claiming that their human rights had been violated. Several cases are currently pending before the ECtHR.

 Especially the case Duarte Agostinho and Others v. Portugal and Others has attracted much attention since it was raised in September 2020. This complaint was filed by Claudia Duarte Agostinho, a young Portuguese woman, together with other five Portuguese youths against 33 European countries, claiming that the respondents have violated human rights by failing to take sufficient action concerning the prevention of climate change.

The main reasons for these claims are the devastating bushfires and severe heatwaves which happened in 2017 in Portugal and scientists linked to climate change. This caused physical and mental damage to the Portuguese youth.

The complainants argue that these impacts constitute a breach of the European Convention on Human Rights, in particular Article 2 (the right to life), Article 8 (respect for private and family life), and Article 14 (freedom from discrimination). First of all, they allege that their right to life is in danger because of the effects of climate change in Portugal. Moreover, they believe that their right to privacy also encompasses their physical and mental well-being.

This is threatened by natural disasters that cause fear and anxiety for young people. Last but not least, they claim that they are especially affected as young people as they are the ones who will experience the worst effects of climate change in the next decades.

The case is brought against all the 27 Member States of the EU as well as Norway, Russia, Switzerland, Turkey, Ukraine, and the United Kingdom. The complainants argue that these states did not comply with their human rights obligations by failing to agree to emissions reductions that will keep the temperature rise to 1.5 degrees Celsius.

They think that states’ obligations under the ECHR ought to be interpreted in light of several international instruments, including the Paris Agreement, the objectives of the UNFCCC, and provisions in the UN Convention on the Rights of the Child. Furthermore, they base their arguments on the precautionary principle, claiming that this principle should determine the Court’s interpretation of the respondents’ obligations.

The other pending cases raised by the younger generation bring up similar arguments and questions of intergenerational justice. In Engels v. Germany, nine adolescents and young adults claim that climate change is very likely to cause increasingly severe damage to their human rights over the next years.  In Uricchiov v. Italy and 31 Other States, and De Conto v. Italy and 32 Other States, young complainants argue that the effects of global warming are affecting their quality of life and mental health.

And in Greenpeace Nordic and Others v. Norway, the six young climate activists see their futures endangered by Norway’s continuous oil drilling and describe their fears about the impending risks and impacts of climate damage as "pre-traumatic stress."  They point out that their age prevents them from participating in political decision-making and elections. It appears unfair that the younger generation still bears the greater burden.

The cases raise the voices of one of the most affected groups in climate policy-making – the younger generation – and demonstrate the current impacts of climate change that they experience. With these cases, the European Court of Human Rights has the unique opportunity to advance its case law and to adjudicate one of the biggest threats that the planet, and subsequently younger generations, face. His decisions can send out important signals and raise the political pressure for states to act, and hence promote intergenerational justice on the European level.