European Convention on Human Rights (ECHR) / European Court of Human Rights (ECtHR)

The European Convention on Human Rights (ECHR) was signed in 1950 and came into force in 1953. It is an international treaty which binds all member states of the Council of Europe. The Convention’s purpose is to afford fundamental civil and political rights to all people living within the Council’s jurisdiction, including both citizens and non-citizens of member states.

The principle of access to justice is enshrined in Articles 6 and 13 of the Convention, which guarantee the right to fair trial and to an effective remedy through the European Court of Human Rights (ECtHR) process. Articles 2, 5, and 8 enshrine important rights with respect to climate litigation, guaranteeing the right to life, the right to liberty and security, and the right to respect for private and family life respectively. There are also various Optional Protocols, which not all members have signed. For example, Article 1 of Optional Protocol 1 enshrines the right to property, which has important implications for climate litigation.

Some of the rights enshrined in the ECHR that are most relevant for climate change include:

ARTICLE 2    Right to life

  1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
  2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

ARTICLE 5    Right to liberty and security

  1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

  1. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

ARTICLE 6    Right to a fair trial

  1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
  2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

ARTICLE 8    Right to respect for family and private life

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

ARTICLE 13  Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

PROTOCOL 1 – ARTICLE 1 Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The European Court of Human Rights (ECtHR) was established in 1959 as a temporary tribunal responsible for identifying infringements of the political and civil rights set out in the European Convention on Human Rights. In 1998, the ECtHR was transformed into a permanent tribunal which sits in Strasbourg, France. Both individuals and states can bring cases in front of the court, and unlike most international tribunals, its decisions are binding on the state(s) involved in the case.

Only democratic regimes are permitted to become members of the Council of Europe. For the first 30 years of the Court’s life, this criterion largely allowed the Court’s decisions to be implemented with widespread success. However, when the Soviet Union collapsed, many former member states sought admission into the Council of Europe. Many of these countries had troubling human rights regimes which introduced new challenges for the ECtHR. Today, 47 states are parties to the ECtHR, and the Court faces increasing non-compliance alongside an overwhelming backlog of cases. Still, the ECtHR is applauded as one of the most successful international bodies in modern history.

Several climate litigation cases are currently pending with the European Court of Human Rights. Examples include Greenpeace Nordic Ass’n v Ministry of Petroleum and Energy brought by two NGOs and six individuals against the Norwegian government, and Duarte Agostinho and Others v Portugal and 32 Other States which was brought by six Portuguese youth against 33 European countries.