“Did the Court in KlimaSeniorinnen create an actio popularis?” Eight months after the ECtHR’s climate judgment against Switzerland, this question remains a bone of contention both in Swiss politics and among scholars. It relates to whether the ECtHR, in allowing for representative climate applications by associations, jettisoned admissibility requirements and allowed for abstract public interest complaints. On several recent occasions, George Letsas has examined this question, and proposed an innovative answer: Namely that the Court’s much-discussed approaches to victim status and standing can be justified, but only if understood as a recognition of the rights of future generations. Although this proposal is intriguing, it is neither evident based on the text of the KlimaSeniorinnen judgment, nor is it the only way to avoid actio popularis allegations. This post suggests an alternative approach, arguing that a simpler and more convincing answer lies in the affectedness of the older women at the heart of the case.
I. Who was the victim in KlimaSeniorinnen? Letsas’s proposal
Did KlimaSeniorinnen allow an actio popularis, e.g. a case in the public interest that does not concern a wrong suffered by particular individuals? Concerned by this prospect, George Letsas has set out an argument – once on this blog, and more recently in the European Convention on Human Rights Law Review – for why the ECtHR has not, in fact, admitted an actio popularis and thereby engaged in “judicial activism” or “compromised the principle of individual justice and undermined its legitimacy.” To understand his argument, it is important to reiterate that KlimaSeniorinnen created a new, particularly strict test for victim status in climate cases. Because the four individual applicants in the case did not meet that special test, their part of the case was declared inadmissible. At the same time, these four individuals were members of the applicant association (the “Verein KlimaSeniorinnen”), and that association was granted standing to represent its members before the Court.
Taking in this result, Letsas asks: “If there was a violation of Article 8 ECHR, as the Court accepted, then who is the victim?” He notes that the judgment essentially lends itself to two interpretations, both equally problematic. Either the four individual applicants were affected in their rights (and the Court was wrong not to grant them victim status), or they were not affected (and the association should not have been granted standing to represent them either). Letsas cites the separate opinion of Judge Tim Eicke in the case, who argued that the majority “created exactly what the judgment repeatedly asserts it wishes to avoid, namely a basis for actio popularis type complaints”.
To avoid such a conclusion, Letsas proposes a salutary third interpretation, namely that the association acted as a representative not of its members, and not of the public interest, but of the Convention rights of future generations. The representational disadvantage of future generations, he finds, justifies collective action by associations representing them. He links this to the ECtHR’s case-law on potential victims, i.e. those facing an actionable but not-yet-fully-materialized risk of human rights impacts, and to cases allowing exceptional representation of deceased vulnerable persons. In doing so, he argues that “it is not clear that anything relevant hangs on the distinction between the rights of a dead person and the rights of a future person” – or, for that matter, the risks facing today’s children who, “just like deceased persons, (…) cannot bring an application before the Court. But their relatives can.”
In short, Letsas argues that the Court’s decision to grant representative standing to the KlimaSeniorinnen association was not justified by the impacts on its living members, the thousands of older women that it represents. Instead, the case was allowed to proceed because the assocication represents the rights of future generations. The fact that the Court did not explicitly link its finding on representational standing to intergenerational justice, he finds, “was simply an oversight”.
II. Against Overstating the Role of Future Generations in KlimaSeniorinnen
This post’s point of departure in many ways aligns with George Letsas’ perspective. It agrees that the Court has made valuable contributions to human rights protection in Europe, including through its ‘living instrument’ approach. It is troubled by the idea that challenges to systemic problems are automatically construed as abstract or public interest claims. And it welcomes the Court’s attention to the burdens and representational disadvantages facing future generations (para. 420 of the judgment).
Overall, regard for future generations has an important role to play in shaping responses to climate change, including in climate litigation, and future generations and intergenerational burden-sharing do feature in the KlimaSeniorinnen judgment. These topics clearly informed the judges’ analysis of the case, and they have also been prominently discussed elsewhere, including in a recent CRC General Comment and in the Maastricht Principles on Future Generations. However, Letsas’s argument – and the implication that KlimaSeniorinnen is fundamentally or even exclusively about protecting the rights of future generations, because the representational standing of the applicant association was implicitly justified with respect of those rights – is not entirely convincing. The following provides three explanations for this position.
1. First, the KlimaSeniorinnen judgment explicitly notes that ECHR rights apply only to those currently living. The Court held that “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” (para. 420). This is reminiscent of earlier case law, which avoided recognizing rights for the unborn. As a result, reading rights for future generations into the Convention is unlikely to happen by implication or be omitted by “oversight”, as Letsas argues. It is perhaps more convincing to argue that the judgment’s reference to intergenerational perspectives served as an overarching background consideration – and not an expression of actionable Convention rights.
2. Focusing on future generations neither limits the number of victims, nor makes cases less abstract. The Court’s victim status case-law is indeed flexible, and can allow cases brought on behalf of deceased persons (e.g. where a person has been disappeared or killed, and their family indirectly brings a case on their behalf), as well as potential victims (those facing risks of rights impacts). However, the requirements for this are limited, exceptional, and entail regard for concrete situations and individuals, not abstract groups – and certainly not a group as vast and amorphous as future generations. Indeed, successive combined future generations will far outnumber all the people living on the planet today. In other words, it is not clear that focusing exclusively on future generations as a limiting criterion prevents an abstract actio popularis. To counter Letsas’s argument that “it is not clear that anything relevant hangs on the distinction between the rights of a dead person and the rights of a future person”, there is in fact a distinguishing factor when it comes to individual applications: the relevant aspects of the factual situation and life of the deceased person are known or knowable. The same is true of cases brought on behalf of individual living children.
3. Focusing exclusively on future generations disregards current impacts on living people. Arguing that the KlimaSeniorinnen association was only granted standing because it represented future generations completes the ongoing political and legal disregard for climate-related impacts and risks already facing vulnerable individuals, groups and communities. This is particularly true when combined with the inordinately strict victim status test set in KlimaSeniorinnen. It also invites understandings of future generations as a homogenous group equally affected by climate change, when in fact current inequities and vulnerabilities will continue to be reproduced over time. Indeed, recognizing the rights of future generations raises its own set of merits and challenges, and deserve a nuanced examination – they are, in other words, not a stopgap solution to alleged abstraction.
III. An Alternative Explanation, or: Why KlimaSeniorinnen is not an actio popularis
Letsas’s proposal is certainly worth thinking through, also in ways that are beyond the scope of this post. For example, underlying accounts of the Court’s approach to (individual) justice could be textured by referring to its powers to issue advisory opinions, adjudicate interstate cases and order general measures. However, the central argument here is that Letsas’s reading is not the only way to reconcile KlimaSeniorinnen with the prohibition of actiones populares. The following proposes an alternative explanation for the representative standing granted in KlimaSeniorinnen.
To get there, we start from the premise that cases brought for or by affected people are not abstract actiones populares, precisely because these individuals are affected. This applies even if the case simultaneously relates to a broader overarching (public, environmental, etc.) interests. The question, then, is if the applicant association in KlimaSeniorinnen was actually representing affected victims; if so, the case cannot be described as an actio popularis. To Letsas, the fact that the four individual applicants in KlimaSeniorinnen did not meet the special new victim status test for climate cases automatically meant that they did not qualify as victims for the purposes of representation. However, that need not necessarily be the case.
As discussed, KlimaSeniorinnen designed a new, special victim status test for climate cases (“the special test”). This represents an exception from the standard, affectedness-based test of victim status used throughout the Court’s case-law (“the standard test”). And that standard test could very well have been met by the individual KlimaSeniorinnen applicants, or other members of the association. In other words, the fact that the KlimaSeniorinnen finding on representative standing was made without meeting the special new victim status test does not mean that no victim status requirement was applied. In this regard, the Court stated only that representative standing by associations was not subject to the special test (para. 502 of the judgment). At the same time, it limited representative standing by climate associations to cases brought on behalf of affected people (ibid.). That is: associations can represent affected people, even if those people do not meet the special KlimaSeniorinnen victim status test. Or, put differently, representative standing may simply be possible at a lower (regular) threshold of victim status than individual climate applications.
Certainly, this interpretation of KlimaSeniorinnen also leaves various questions unanswered. For example, it is not clear when or how this victim status test is met, or precisely how broad the possibilities of representative climate litigation in Strasbourg will be. The right of individual application and access to the Court appear problematically restricted even if victims who meet the ‘standard’ but not the ‘special’ victim status test can collectively bring climate cases that they could not bring individually. These questions will need to be clarified in the ECtHR’s following climate cases, several of which are currently pending. However, until they are clarified, it remains important not to foreclose the existence of viable explanations that avoid allegations of illegitimacy or judicial activism.
IV. Conclusion
If Letsas offers us a choice between two possible interpretations of KlimaSeniorinnen – namely that it was either (i) an actio popularis or (ii) a representation of future generations – then this piece offers a third. This third option is perhaps easiest to reconcile with the text of the judgment and the restrained approach of the Court to this case. In presenting this option, the present post does not intend to argue against recognizing future generations as bearers of human rights – their rights are very much at stake in the face of ongoing and interlocking climate, biodiversity and pollution crises. Neither does it seek to justify the Court’s extraordinarily strict victim status test in KlimaSeniorinnen, nor to provide an argument in favor of an abstract actio popularis. Instead, the core point here is that the KlimaSeniorinnen representative standing test can be reconciled with the prohibition of actiones populares in ways that are more continuous with existing case-law and less far-reaching than first impressions of the judgment may imply.
