Carême v. France: Setting the Bar Too High?
By Ecab Amor Vazquez*
Introduction: The State of Human Rights Climate Litigation
The first half of 2024 has seen monumental developments in climate change-based human rights litigation at the level of regional mechanisms of human rights protection. In the Americas, the Interamerican Court of Human Rights published their landmark decision in the case of La Oroya in March, imbuing the emerging right to a healthy environment[1] with a more clearly delineated scope and content as far as State obligations are concerned. Additionally, the Court of San José is primed to deliver the most ambitious pronouncement on human rights in the context of the climate emergency with their still pending advisory opinion.[2] On the other side of the Atlantic, for its part, the European Court of Human Rights (ECtHR/the Court) ruled on three cases focused on human rights violations related to climate change: the case of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the admissibility decision in the case of Duarte Agostinho and Others v. Portugal and Others, and, finally, the admissibility decision in the case of Carême v. France.
These developments in the European forum are of special note since the Court had, up to this point, primarily been presented with cases related to the negative effects of concrete instances of pollution originating, for instance, from factories, airports, and/or other clearly identifiable sources of contaminants. Indeed, since the seminal Lopez Ostra case,[3] the Court had been consistently presented with situations with a clearly identifiable source of environmental pollution, making it easy to identify both the polluter and those adversely affected by the pollution. The Court has dealt with such cases almost exclusively in relation to private, family life and home under Article 8 of the European Convention on Human Rights (ECHR/the Convention). The three cases outlined above are transcendental since they asked the Court to decide on the manner and extent to which State responsibility could be incurred as a result of the State’s failure to curtail the negative effects of climate change and its inadequate implementation of Greenhouse Gas (GHG) emissions reduction.
Despite its omnipresence in mediatic and policy circles, the phenomenon of climate change poses a number of cross-cutting and diffuse challenges to the traditional understanding of human rights law for several reasons - in particular, the transnational, long-term, and widespread adverse consequences of climate change, affecting present and future generations, and which result from the actions and omissions of a multitude of actors. Unfortunately, there has been, and continues to be, significant legal uncertainty regarding how, and to what extent, States must take action in order to comply with their human rights obligations. Thus, these three rulings set important precedents that give a clearer understanding to both States and citizens regarding how climate change-based human rights litigation will be resolved in Strasbourg.
Among these rulings, however, one is often left by the wayside: the admissibility decision in the case of Carême v France. Indeed, attention has, almost exclusively, been given to the Swiss and Portuguese cases: the first, likely because it was the only resolution by the Court finding that a State had violated the rights of its citizens for failing to implement sufficiently ambitious climate response policies; and the second, likely because of the incredibly bold positions taken by the applicants, which, originating from States throughout the continent, sought to hold a myriad of States accountable for their inadequate response to the climate emergency.
Carême v France is, in a way, the ugly duckling of this wave of climate litigation before the European Court - forgotten in favour of its flashier counterparts. This being said, however, it is essential to take a closer look at the specificities of the Carême case in order to get a full picture of the manner in which Strasbourg will address climate change-based rights litigation in the future.
This is for two primary reasons:
First, Carême is the only case with a single individual application, thus giving an insight into how stringent the Court will be when applying the victim status parameters it outlined in the case of Verein KlimaSeniorinnen.[4]
And second, the case gives an insight into the manner in which the findings of national courts regarding the imminent danger a community faces as a result of climate change will be taken into account for the purposes of an individual application.
The Circumstances of Mr. Damien Carême
The applicant in this case was one Mr. Damien Carême, a career politician who at the relevant time was the mayor of the municipality of Grande-Synthe.[5] In 2018, Mr. Carême, acting in his own name and on behalf of the municipality of Grande-Synthe, made a formal call to the executive authorities of France to, in essence, take all necessary measures in order to curb GHG emissions produced on the national territory in order to comply with France’s international obligations in that respect: a request which received no response.[6] It was in light of this implied rejection that Mr. Carême instituted proceedings before the Conseil d’Etat, arguing, in particular, that the government had a positive duty to take effective measures to address climate change, including the necessary adaptation measures, which, in his view, it had failed to take.[7]
To support his application at the national level, Mr. Carême invoked the adverse effects currently being endured by “the health and economy of various states around the world” (para 14). Additionally, the applicant cited the IPCC Report Global warming of 1.5 ºC as a means of evidencing the future threat that climate change posed if GHG emissions were not to be progressively limited in line with the international commitments. The applicant further cited the fact that the State had actually increased its carbon budget by 6.8%, which meant that it would be unable to meet its emissions targets set for the period of 2015-2018. Finally, to cement the concrete risk presented to the municipality of Grande-Synthe, the applicant emphasised that according to the most recent available science, the municipality is at risk of suffering from coastal flooding by 2040.[8]
Additionally, however, Mr. Carême also made arguments relating to his personal circumstances where he emphasised the fact that his home at the time was located in an area that was at special risk of flooding, meaning that if no immediate action was taken he would see his right to life (Article 2 ECHR) and his right to private, family life, and home (Article 8 ECHR) directly affected.[9]
In their judgement, the Conseil d’Etat centred much on their attention on the issue of standing, but made a conceptual differentiation between the circumstances of the community located in the municipality of Grande-Synthe and that of Mr. Carême as an individual applicant.[10]
Regarding the former, the Conseil was incredibly progressive, adopting an expansive notion of harm in order to grant the community of Grande-Synthe standing before the French High Court. In the Conseil’s own words “[w]hile the[...] concrete consequences of climate change are likely to have full effect on the territory of the municipality only by 2030 or 2040, their inevitability, in the absence of effective measures taken quickly to prevent the causes and in view of the time frame for public policy action in this area, is such as to justify the need to act without delay. Consequently, the municipality of Grande‑Synthe, in view of its level of exposure to the risks arising from the phenomenon of climate change and the direct and certain impact [of climate change] on its situation and the interests for which it is responsible, has an interest conferring on it standing to seek the setting‑aside of the contested implicit [rejection] decisions.”[11] Indeed, the Conseil understood that the risk posed to the community, which rested on the most recent scientific studies, was sufficiently certain and inevitable, so as to reach the standard of harm necessary to give the municipality of Grande-Synthe standing.
At the same time, however, the Conseil found that Mr. Carême’s current residence in the municipality gave him “no such interest”.[12] To reach this conclusion, the Conseil based itself on the findings of the public rapporteur which noted that “there is no indication as to where [Mr. Carême’s] residence will be in the years to come, let alone in twenty years or more, so that his [personal] interest appears to be affected in too uncertain a manner on this point.”[13]
The Public Rapporteur’s comments were correct in the case of Mr. Carême, since by 2019 he had moved to Brussels to undertake his functions as an elected member of the European Parliament.[14] It is, however, essential to note that at the time of the proceedings before the Conseil these conclusions were based on mere assumptions since there was no indication, at the relevant time, that Mr. Careme was intending to move. Since then, Mr. Carême, has neither owned nor rented any property in the municipality and the only connection maintained with the territory was the fact that his brother continued to reside in the municipality of Grande-Synthe.[15]
Having resolved the issue of standing, and having ordered further investigations to be conducted into the effects that the standards put in place by France are having on the community,[16] the Conseil ultimately resolved that the policies put in place to achieve the fixed objectives concerning the reduction of GHG emissions had been insufficient and ordered that they be modified so as to be in line with the relevant international commitments.[17]
It is in this context that Mr. Carême brought forth an application to the ECtHR arguing that France had failed to take sufficient steps to prevent climate change and that this failure entailed a violation of his right to life and the right to respect for his private and family life and his home, relating, in particular, to the risk of climate‑change‑induced flooding to which the municipality of Grande‑Synthe would be exposed in the period 2030‑40.[18]
The Court’s Finding: Inadmissibility
In the midst of these circumstances the Court ultimately found Mr. Carême’s application inadmissible, making explicit reference to the victim status requirements established in the Verein KlimaSeniorinnen case.[19] As established in that case, in order for an individual applicant to claim victim status it is necessary to show the following:
That the applicant was subject to a sufficiently high level of intensity to the effects of climate change; and
That there is a pressing need to ensure the individual applicant’s protection.[20]
In the case of Mr. Carême, the Court found that his complaints were based, primarily, on the local circumstances of the municipality but did not show, to the requisite level of intensity, that he was suffering from the detrimental effects of climate change today.[21] Furthermore, the Court reiterated the argumentation of the public rapporteur that there was no indication as to where the applicant’s residence would be in the years to come, let alone in 20 years, confirming the “hypothetical nature” of the applicant’s claim.[22] No more extensive reasoning was offered by the Court to bolster the hypothetical nature of the applicant’s claim, for instance, elucidating the manner in which his claim did not comply with the Klimaseniorinnen criteria, making it appear so that the Court simply made the Special Rapporteur’s reasoning their own.
Said conclusion, in the specific case of Mr. Carême, was supported in the Court’s view by the fact he no longer resided in Grande-Synthe and, further, that the only tie which connected him to the municipality came in the form of his brother.[23] On this latter point, the Court emphasised, that in line with established case law, a fraternal tie, absent additional elements of dependence, is not sufficient to rely on the family life element of Article 8 ECHR.[24]
Finally, the Court noted that Mr. Carême’s victim status may not be established by mere reference to one’s citizenship or former residence in a given territory.[25] This, since to hold “otherwise, and given the fact that almost anyone could have a legitimate reason to feel some form of anxiety linked to the risks of the adverse effects of climate change in the future, would make it difficult to delineate the actio popularis protection – not permitted in the Convention system – from situations where there is a pressing need to ensure an applicant’s individual protection from the harm which the effects of climate change may have on the enjoyment of their human rights.”[26] All this taken together, along with other elements,[27] ultimately led the Court to declare the application inadmissible.
However, the Court took the time to note that, in any case, the interests of the residents of Grande-Synthe had already been defended and protected by the municipality under national law.[28] This is to say, that the Court seems to have rubber stamped the reasoning of the Conseil D’etat, seemingly upholding their reasoning that irrespective of the temporal gap existing between the present and the future negative effects of climate change immediate action must be taken today.
The Future of Individual Climate Change Applications in Strasbourg: Setting the Bar Too High?
The Court’s reasoning gives important insight into the flexibility, or really lack thereof, which exists in the victim status requirements established in the case of Verein KlimaSeniorinnen. Indeed, what is evident from the Court’s findings is that there is a resistance to break away from the traditional conception of harm in human rights cases.[29] This is to say that the Court, as far as individual applications are concerned, continues to consider that victim status may only be claimed by applicants when the harm to them has already come to pass and/or when the applicant finds themselves immediately in harm's way. Thus, given the fact that Mr. Carême did not face an immediate, real, and present danger, both because he no longer lived in Grande-Synthe at the time of the application before the Court and, ostensibly, also because the harm would only manifest itself in 10-20 years - a time at which it was uncertain whether or not he would live there -, these circumstances alone were not sufficient to fulfil the two pronged test of direct affectation and pressing need established in KlimaSeniorinnen.[30]
What is interesting in this case, however, is that the Court seems to have displayed a more lax view as far as the protection of Grande-Synthe was concerned. Indeed, it is important to emphasise that the Court seems to have agreed with the Conseil d’Etat in its finding that the action plan implemented by France fell short of what would be necessary in order to obtain France’s stated GHG objectives and that, thus, the French High Court was correct in ordering the administrative authorities to implement a plan that would prevent the catastrophic consequences the region would “inevitably” face.[31] This finding, moreover, being supported by scientific literature which made evident that those inhabiting the municipality of Grande-Synthe would suffer irreparable harm were the situation to be left as is.[32]
At once the Court seems to have agreed, or at least accepted, that should action not be taken to curtail the inevitable[33] consequences of a continually lax GHG policy the rights of the inhabitants of Grande-Synthe would have been affected, but, at the same time, this “inevitability” did not then translate into granting standing to Mr. Carême before the Court since his claim was purely “hypothetical”.[34] So which one is it? It is “inevitable” when it affects a large group of people, but only “hypothetical” when an individual makes, for all practical purposes, the same claim? It seems so. That being said, this reasoning seems to stand in contrast with the criteria the Court stated it would take into account when determining whether the two pronged KlimaSeniorinnen has been met, namely giving due regard to “circumstances such as the prevailing local conditions and individual specificities and vulnerabilities” as well as considerations relating to “nature and scope of the applicant’s Convention complaint, the actuality/remoteness and/or probability of the adverse effects of climate change in time, the specific impact on the applicant’s life, health or well-being, the magnitude and duration of the harmful effects, the scope of the risk (localised or general), and the nature of the applicant’s vulnerability.”[35]
The Court itself seems to have acknowledged the actuality and “inevitability”[36] of the danger climate change posed to the municipality of Grande Synthe, and yet this was, evidently, not sufficient to establish the “especially high”[37] threshold required to meet the KlimaSeniorinnen test. Indeed, a direct, concrete, and sufficiently immediate affectation to an individual’s rights seems to be the only elements which would allow an individual applicant to have standing before the Court.
To this point it should be recalled that the hypothetical nature of Mr. Carême’s claim was premised, fundamentally, on the fact that it would not be possible to prove that he would continue to reside in the territory 20 years into the future.[38] In the specific case of Mr. Carême this turned out to be true, but for the broader future of climate change-based human rights litigation before Strasbourg does not bode well, displaying an unwillingness to recognize both the nature of the challenge climate change poses, as well as the reality of modern life.
The relevant studies used for the resolution of this case at the national and international level show that the effects of climate change will only fully manifest in the medium to long term, that is 15-20 years into the future,[39] meaning that the requisite level of intensity and imminence seemingly required to satisfy the KlimaSeniorinnen test are likely to only manifest once the point of no return has been passed - this in line with an similar approach taken by the UN Human Rights Committee in the case of Billy v Australia, where said organ found that a timeframe of 10-15 was sufficient time for the respondent State to take the appropriate actions to curtail the effects of climate change so the impending threat of climate change was not sufficiently close in order to warrant a violation of the right to life.[40] The Strasbourg Court has seemingly crystallised its reactive approach when proactive measures are what the times call for. Further, the Court also seems to require that individuals have a clear and immovable lifeplan in order to establish that the risk of future harm posed by climate change is anything but purely hypothetical - this ignoring the fact that the European reality is one where freedom of movement, residence, and establishment are the backbone of the continent’s operation.
These two elements taken in tandem beg a number of the questions: who, if anyone, would be able to fulfil the KlimaSeniorinnen criteria? Is it only possible in the case of an association of elderly individuals who are already experiencing the negative effects of climate change? Has the Strasbourg Court set the bar too high for individual applicants? For the time being these questions remain unanswered, and it will be left to future applications to determine if it is even possible for an individual to have their case decided favourably by the Strasbourg Court.
*Ecab Amor Vazquez is an international human rights professional. His legal background is in Spanish, comparative, and international law with expertise in the European and the Inter-American systems of human rights protection. He formerly was a Visiting Professional to the Interamerican Court of Human Rights and is currently working as a Research Assistant on the case law of the Inter-American Court of Human Rights for ‘The Inter-American Court of Human Rights: Case Law and Commentary’. Finally, he is currently a member of the Legal Advocacy Taskforce at WYCJ.
Footnotes
[1] First explored in I/A Court H.R., The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity – interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights). Advisory Opinion OC-23/17 of November 15, 2017. Series A No. 23 and later employed for the resolution of the Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina. Interpretation of the Judgment on Merits, Reparations and Costs. Judgment of November 24, 2020. Series C No. 420.
[2] Submitted to the Inter-American Court of Human Rights by the Republic of Colombia and the Republic of Chile
[3] López Ostra v Spain, No. 16798/90, 09 December 1994
[4] Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], no. 53600/20, §§ 487-488, 9 April 2024
[5] Grande‑Synthe is a municipality of some 23,000 inhabitants located in the Dunkirk area on the coast of the English Channel. As found by the Conseil d’État, Grande‑Synthe is particularly exposed to risks linked to climate change, including the risk of flooding. Carême v. France (dec.), no. 7189/21, §10, 9 April 2024.
[6] Carême v. France (dec.), no. 7189/21, §11, 9 April 2024.
[7] Carême v. France (dec.), no. 7189/21, §17, 9 April 2024.
[8] Carême v. France (dec.), no. 7189/21, §§14-15, 9 April 2024.
[9] Carême v. France (dec.), no. 7189/21, §16, 9 April 2024.
[10] Carême v. France (dec.), no. 7189/21, §§26-27, 9 April 2024
[11] Carême v. France (dec.), no. 7189/21, §28, 9 April 2024. Emphasis added.
[12] Ibid.
[13] Carême v. France (dec.), no. 7189/21, §29, 9 April 2024. Emphasis added.
[14] Carême v. France (dec.), no. 7189/21, §§ 9 & 68, 9 April 2024.
[15] Carême v. France (dec.), no. 7189/21, §§ 68 & 81, 9 April 2024.
[16] Carême v. France (dec.), no. 7189/21, §§ 34-35, 9 April 2024.
[17] Carême v. France (dec.), no. 7189/21, §§ 36-37, 9 April 2024.
[18] Carême v. France (dec.), no. 7189/21, § 56, 9 April 2024.
[19] Carême v. France (dec.), no. 7189/21, §§ 75-76, 9 April 2024.
[20] In the Court’s own words: “This would require the Court to establish [...] the following circumstances concerning the applicants situation: (a) the applicant must be subject to a high intensity of exposure to the adverse effects of climate change, that is, the level and severity of (the risk of) adverse consequences of governmental action or inaction affecting the applicant must be significant; and (b) there must be a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm.” Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], no. 53600/20, § 487, 9 April 2024
[21] Carême v. France (dec.), no. 7189/21, §77, 9 April 2024.
[22] Carême v. France (dec.), no. 7189/21, §§ joint reading of para 79 and 80, 9 April 2024.
[23] Carême v. France (dec.), no. 7189/21, §§ 81-82, 9 April 2024.
[24] see, for instance, Mamasakhlisi and Others v. Georgia and Russia, nos. 29999/04 and 41424/04, § 282, 7 March 2023, with further references
[25] Carême v. France (dec.), no. 7189/21, §83, 9 April 2024.
[26] Carême v. France (dec.), no. 7189/21, §84 , 9 April 2024.
[27] Namely the extemporaneity of Mr. Carême’s mention of his developing allergic asthma and the fact that presenting the application in his capacity as a government official (“governmental organizations”) ipso facto deprived him of standing.
[28] Carême v. France (dec.), no. 7189/21, §86 , 9 April 2024.
[29] Carême v. France (dec.), no. 7189/21, § 84, 9 April 2024.
[30] Carême v. France (dec.), no. 7189/21, § 84 9 April 2024.
[31] Carême v. France (dec.), no. 7189/21, §§ 77-78 & 86, 9 April 2024.
[32] Carême v. France (dec.), no. 7189/21, §§ 78 and 86, 9 April 2024
[33] Carême v. France (dec.), no. 7189/21, §§ 28 & 78, 9 April 2024.
[34] Carême v. France (dec.), no. 7189/21, §80, 9 April 2024.
[35] Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], no. 53600/20, §§ 488, 9 April 2024
[36] Carême v. France (dec.), no. 7189/21, § 78, 9 April 2024.
[37] Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], no. 53600/20, §§ 488, 9 April 2024
[38] Carême v. France (dec.), no. 7189/21, §§ 29 & 81-83, 9 April 2024.
[39] Carême v. France (dec.), no. 7189/21, §§22-23, 9 April 2024.
[40] Billy v. Australia CCPR/C/135/D/3624/2019, Para. 8.7