Youth-Led Climate Litigation, the ECT and Climate Victims in the EU
I interviewed Alex Kassapis (again) but this time on something different from air-free travel. We spoke about the case he and four other people are bringing at the European Court of Human Rights.
Tell us about your case
What is the law your claims are based on?
The law our claims are based on stems from the European Convention of Human Rights.
Specifically, we claim that Article 2 - the right to life - and Article 8 - the right to respect for private and family life, home and correspondence - are being violated by States due to their membership and compliance with the Energy Charter Treaty (ECT).
Now, you may wonder, how can membership and compliance with a Treaty violate these rights?
To fulfil the obligations under Articles 2 and 8 in the context of climate change, States must reduce GHG emissions in a manner consistent with achieving the long-term temperature increase limit of 1.5°C set by the Paris Agreement.
In light of prominent scientific evidence, complying with this obligation requires states to, among others, urgently limit their emissions by phasing out fossil-fuels in energy production and hence inevitably prohibiting fossil fuel extraction, production and use.
However, membership and compliance with the ECT impedes the Party States’ ability to comply with this obligation, since it impacts the extent to which States can take such steps without the threat of liability.
Therefore, this means that States are under a duty to take reasonable steps to remove the impediments created by the ECT to the fulfilment of their obligations under the Convention. States cannot simply dilute the effectiveness of Convention rights through their commitments in separate treaties.
Also, States’ duty to cooperate under Articles 2 and 8, in the context of climate change, requires them . Therefore States also ought to take adequate steps to regulate companies under their jurisdiction not to hinder other States’ efforts to reduce their GHG emissions, per the duty to cooperate under Articles 2 and 8.
It is also important to note that all five claimants to this case have a victim status, as we have suffered from the direct effects of extreme weather events and the ensuing trauma and climate-related stress and anxiety. The future increase in frequency and intensity of climate change impacts in our home areas raise increased risks to our lives and health, in particular with regard to our status as youth.
Tell us more about the ECT and the controversies behind that in the EU?
The ECT is an international investment agreement which was adopted in 1994 to protect investments from foreign energy companies, particularly in the newly opened markets of post-communist states. Under the Treaty, foreign companies are allowed to claim compensation from the over 50 signatory states for introducing policy changes and laws that impact their profitability.
It is one of the most often sued treaties in investor-state dispute settlement processes where corporations can simply side-step domestic courts to sue governments in secretive tribunals.
Neither arbitration procedures nor the awarded damages are required to be public. According to Mathilde Dupré, Co-Director of the Veblen Institute, the main NGO supporting this case, the impact of ECT on climate action was only discussed in one scholarly article in 2018. According to the International Institute for Sustainable Development, the fossil fuel industry has extensively used this treaty to challenge a wide range of policy measures, and particularly those that have been designed to protect our environment and climate.
The fact that the effects of the ECT are only becoming known now truly angers me, as scientists have been warning of the detrimental effects of dangerous climate change for years now, while governments have been lying to our faces, claiming they are taking the necessary measures for GHG emission reduction. In reality, they have risked a huge amount of taxpayer money. A current example is that of German energy company RWE, which is suing the Netherlands for 1.4 billion euros ensuing the Dutch government’s decision to ban the use of coal in electricity generation from 2030. Also, British oil company Rockhopper won 250 million euros from Italy in compensation for a ban on oil drilling near the country’s shores.
Attempts have also been made to modernise the Treaty, with highly insufficient results (for more information on that click here).
Filing this case has opened the floodgates for the Treaty to become one of the most pressing issues in the European climate agenda.
What about your personal experience motivated you to take this on?
On one hand, the chance to take legal action representing my home area. I have been deeply concerned over the years to see the vulnerability of the environment around my home to be increasing due to climate change. Record high temperatures have been increasingly fuelling forest fires in the dry environment in the outskirts of Athens. Last summer, I had to evacuate my home twice; it was unknown whether I would have a home to head back to. The situation is becoming worse year by year. Home evacuations, flames, panic and the ensuing burned, lifeless swaths of land have become the new reality for the surroundings of the Greek capital. I want to raise my voice as a young person; this is not the future I want and I will fight against any state decisions that may jeopardise my fundamental human rights.
On the other hand, anything that may inhibit the urgent reduction of GHG emissions in our current climate risk situation, is too big of a deal to remain unheard. The ECT has therefore united five young voices, the echo of which will not stop at borders, investors’ financial interests or weak governmental decisions: we want justice.
Climate action has become a heavily politicised area in many parts of the world, especially Europe who seek to be climate-neutral leaders by 2050. What is the current climate-action scene looking like in Greece?
The Greek government truly lacks ambition to deliver the necessary changes, operating within a narrow policy framework that is acceptable by businesses and enterprises. It was recently revealed by Eurostat that Greece has incurred the highest monetary losses per inhabitant due to climate change in 2020. Nevertheless, instead of attributing responsibilities to GHG emissions and the necessity to reduce them, and accepting the necessary legislation, the government is still looking at a growth agenda (and migrant pushbacks). It really feels like the public is unaware of the connections between increasing natural disasters and GHG emissions; even if the whole country has been burning.
How did you come together with the other claimants to bring this case to life?
I was brought into contact with the young claimants by corresponding with Camille Etienne, a young French activist, following encouragement from my friend and fellow activist Adèle. Camille sought to find victims of climate change related disasters around Europe, to bring us into contact with Mathilde Dupré, co-director of Veblen Institute, who had been meticulously working on the preparation of the case for a whole year with Clementine Baldon, our lawyer. I was the last person to be added to a group of four, consisting of Maya from St Martin, Julia from Germany, Damien from Belgium and Marion from Switzerland. We have now met through calls and keep contact, while I recently met Maya and Julia in person, along with our lawyer and Mathilde Dupré , in Paris.
How has this experience been on your mental health?
It has been a truly wonderful experience! Nothing like feeling like your voice is heard - and doing this jointly with fellow young people, motivated by our common passion for climate justice. I had a conversation with the person sitting next to me on the train ride back from Paris, and once I told her the case details, she asked me: What is your lobby’s name? Who are you working for? The answer was simple; no one, just myself and at the same time everybody else.
What would you say are the benefits of climate litigation in the climate action movement and in ensuring the active participation of the youth in decision-making?
It is disappointing to see the very limited extent to which the youth participates in environment related decisions at a political level. Litigation has clearly given the opportunity for us to be involved as well. Our case is the second major climate case taken by young victims of the climate crisis against multiple countries to the ECtHR. 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”.
Our generation is the one to inherit a climate at a tipping point; our generation must therefore be heard. We want change, and we want it now.