The case has been filed on Tuesday 21 June 2022 with the European Court of Human Rights (ECHR) and is the first to target the role of the Energy Charter Treaty (ECT) in delaying climate action.
The Energy Charter Treaty is a plurilateral trade agreement from the nineties which protects foreign investment in energy supply by means of private arbitration. The EU and its Member States, except Italy, are all parties to the ECT. EFTA, energy community and central Asian countries are also parties to the ECT, just like Japan. As of today, there are 150 known Investor-State-Dispute-Settlement (ISDS) claims under the ECT. It is likely that more ISDS claims will be launched in the future against EU countries as they are leading in the phase out of fossil fuel infrastructures and changing subsidies to renewable investment to align them with the drastic decrease of the cost of such installations.
The action is led by Clémentine Baldon, lawyer at the Paris bar, with the support of Nikos Braoudakis and the valuable contribution of Yamina Saheb. It is supported by the Veblen Institute.
Clémentine Baldon, lawyer at the Paris bar, representing the plaintiffs
"Human rights are being breached and will continue to do so as climate change is worsening. Through treaties such as the ECT, governments face arbitration claims from fossil fuel investors exposing them to huge financial risks should they decide to implement the necessary energy transition. With the ECT, they also allow their national companies to challenge other States' legitimate climate measures. This is inconsistent with their international climate commitments under the Paris agreement. and breach their obligations under the European Convention for Human Rights."
Mathilde Dupré, Co-Director, Veblen Institute, Paris
"The ECT is a form of life insurance for fossil fuel investors. It discourages State action on climate change and diverts huge amounts of taxpayers money from investing in mitigation and adaptation to meet our international commitments and protect human lives. If these contradictions are obvious to the victims of climate change impacts, why are they not obvious to Heads of State and Government?"
Yamina Saheb, Whistleblower, about the Energy Charter Treaty
"The ISDS mechanism included in the 1994 Energy Charter Treaty (ECT) was identified in the recent IPCC report as "being able to be used by fossil-fuel companies to block national legislation aimed at phasing out the use of their assets". The report further clarifies that "the aim of climate litigation more generally is to supplement other regulatory efforts by filling gaps and ensuring that interpretations of laws and policies are aligned with climate mitigation goals". This is exactly what this claim is about; filling the identified regulatory gaps to ensure the ISDS mechanism included in the ECT will no longer be used against climate mitigation goals."
The Global Legal Action Network (GLAN), which supports the youth-Applicants in the Duarte Agostinho case, also assisted with the drafting of the application in this case.
The case is the second major climate case taken by young victims of the climate crisis against multiple countries to Europe’s highest human rights court. The first such case, Duarte Agostinho v Portugal and 32 other States, filed in September 2020 by six Portuguese young people, has been fast-tracked by the Strasbourg Court on the basis of the "importance and urgency of the issues raised".
On 9 February 2023, the European Court of Human Rights (ECtHr) publicly announced that it decided to adjourn the case pending the examination by the Grand Chamber of three other climate cases: Verein Klimaseniorinnen Schweiz and Others v. Switzerland, Carême v. France and Duarte Agostinho and Others v. Portugal and 32 Others. This follows a prior correspondence sent to the applicants informing them that Court had taken this decision.
Questions raised in the three cases are closely connected to several arguments put forward in the application, notably the recognition that Articles 2 and 8 of the Convention entail a positive obligation on States to fight climate change. The findings of the Court in these cases – but not only – will therefore be decisive in the assessment of the case.
In two of these cases (Verein Klimaseniorinnen Schweiz and Carême), hearings will be held on 29 March 2023 (press release of the Court of 3 February 2023). No precise date has yet been scheduled for a hearing in the Duarte Agostinho case, but it is expected to be held “soon after the 2023 summer judicial recess”.
It is noteworthy that the Court likewise decided to adjourn the examination of five other “climate change” case raising similar questions. Two other cases were declared inadmissible because the applicants could not be granted victim status in accordance with the Convention.
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