The Future is a Foreign Country: Rethinking State Behaviour on Climate Change as Ill-Treatment

by Natasa Mavronicola 

‘We are today perilously close to tipping points that, once passed, will send global temperatures spiralling catastrophically higher. If we continue on our current path, we will face the collapse of everything that gives us our security: food production, access to fresh water, habitable ambient temperature and ocean food chains. And if the natural world can no longer support the most basic of our needs, then much of the rest of civilisation will quickly break down.’ (David Attenborough, February 2021) 

While climate change is already ravaging parts of the world, with its most devastating impacts on the poor and vulnerable, the spectre of climate catastrophe haunts children and young people everywhere. As States’ climate commitments and concrete actions are shown to be inadequate to avert the reaching of the irreversible tipping points David Attenborough warns about, the prospect of a world in which more and more forests turn into deserts, cities drown, animals perish, and human devastation, violence and conflict escalate has led many children and young people to experience a phenomenon referred to as ‘climate anxiety’

Those experiencing climate anxiety endure constant feelings of fear, anguish and powerlessness regarding their own and their loved ones’ well-being, as well as more generalised, prolonged anxiety and uncertainty about the current state and future of the planet. The phenomenon of climate anxiety contributes both to current and prospective suffering. As highlighted in a relevant scientific study, ‘chronic stress from the acute and ongoing impacts of climate change may alter biological stress response systems and make growing children more at risk for developing mental health conditions later in life, such as anxiety, depression, and other clinically diagnosable disorders’. 

The circumstances that children and young people facing the catastrophic consequences of climate change within their lifetimes find themselves in have led many to highlight the profound intergenerational injustice inflicted on younger generations by those that currently hold the key to averting the worst of climate change. The inequities at issue are stark: children, young people and their offspring are condemned to bear the brunt of climate change in spite of being blameless and often lacking the political agency to effect change. 

What I want to argue in the remainder of this piece is that what is currently being inflicted on children and young people through State (in)action on climate change can also be understood as amounting to ill-treatment, in contravention of one of the most fundamental norms of human rights law: the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, States are subjecting children and young people to inhuman and degrading treatment on account of the escalating suffering and real risk of catastrophic and irreparable harm to which State (in)actions are exposing them. 

In a case currently pending before the European Court of Human Rights, six Portuguese children and young adults (aged 8 to 21) are arguing that 33 Member States of the Council of Europe (all 27 EU Member States as well as Norway, Russia, Switzerland, Turkey, Ukraine and the United Kingdom) are violating their rights under the European Convention on Human Rights (ECHR). Agostinho and others v Portugal and others will have already caused substantial disquiet for the respondent States, which have been invited by the Court to address whether the applicants are victims of violations of the right to life (Article 2 ECHR), the right not to be subjected to torture or ill-treatment (Article 3 ECHR), and/or the right to private and family life (Article 8 ECHR), taken individually or in combination with the right not to be discriminated against (Article 14 ECHR). The European Court of Human Rights raised the Article 3 question of its own motion, and I believe it was right to do so. While there is increasing acknowledgement of the impacts of environmental degradation on the right to life and the right to private and family life – as in the landmark 2019 Dutch Supreme Court judgment in Urgenda, for example – there is as yet little recognition of the way in which environmental harm dehumanises and degrades persons in a way fundamentally incompatible with the right not to be subjected to torture and ill-treatment. 

Whether an act, omission or situation amounts to proscribed ill-treatment is assessed in a context-sensitive way to determine whether it reaches a certain ‘minimum level of severity’ (Ireland v UK, para 162). Treatment causing ‘intense physical or mental suffering’ (Bouyid v Belgium, para 87) is often found to be inhuman, while treatment that ‘humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’ (Pretty v UK, para 52) or ‘inducing desperation’ (MSS v Belgium and Greece, para 263) may be found to be degrading, even in the absence of serious physical or mental suffering (Bouyid v Belgium, para 87). More specifically, the European Court of Human Rights has associated inhuman and/or degrading treatment with ‘feelings of fear, anxiety and powerlessness’ (Volodina v Russia, para 75), ‘feeling afraid, depressed and hopeless’ (Premininy v Russia, para 81), ‘intense fear and apprehension’ (Akkoç v Turkey, para 116), ‘constant mental anxiety’ (Rodić v Bosnia and Herzegovina, para 73), and ‘prolonged uncertainty’ (MSS v Belgium and Greece, para 263). The Court pays close attention to any vulnerability experienced by the (alleged) victim. A distressing situation is more likely to cross the threshold of severity when endured by a person whose vulnerability is pronounced, as is the case with children (Bouyid v Belgium, paras 109-110). In determining severity, the European Court of Human Rights pays attention to the cumulative gravity of the particular circumstances experienced, and has recognised that if the circumstances disclose ‘no prospect of an improvement in the situation’, this compounds the gravity of the suffering endured (Clasens v Belgium, para 36). 

The applicants’ experience of climate change, like that of many children and young people around the world, corresponds in many respects to the dynamics of inhumanity and degradation described above: they are currently enduring prolonged and escalating fear, anguish and intense mental suffering emerging from climate change and its consequences – such as deadly forest fires occurring in their neighbourhoods – and facing the real prospect of catastrophic harm and further suffering befalling themselves and their loved ones. Given that they are effectively powerless to alleviate the phenomenon to which their fear attaches, they experience hopelessness and a sense of inferiority that is capable of breaking their spirit. It is not surprising, then, that a psychologist who specialises on climate anxiety in children and young people recently described climate anxiety to me as comparable to the death row phenomenon

An even more powerful parallel may be drawn between the applicants’ situation and that of individuals facing refoulement. It is firmly established as a matter of human rights law that forcibly removing someone to a place where there are substantial grounds for believing they face a real risk of torture or inhuman or degrading treatment violates their right not to be subjected to torture or ill-treatment. The obligation against refoulement under the right not to be subjected to torture or ill-treatment is absolute, and reflects the broader principle that authorities must refrain from forcibly placing someone in a situation where they face a real risk of grave suffering or distress (for example, placing a vulnerable person in solitary confinement). While bodies such as the European Court of Human Rights were initially hesitant to pronounce on prospective breaches of human rights, the rationale for doing so in cases of refoulement was the need to protect persons from irreparable harm. Although the circumstances may appear quite distinct on the surface, States contributing to climate change are similarly subjecting children and young people to a future that is guaranteed to involve real risks of irreparable harm which they are themselves powerless to avert. The prospective crossing of irreversible tipping points means that today’s children and young people are facing real risks of loss of life and serious bodily harm as well as loss of their homes, livelihoods and access to basic resources through extreme weather events, natural disasters, infectious diseases and other ‘sudden-onset’ impacts of climate change and the psychological trauma and mental health deterioration emanating from such events, as well as escalating physical and psychological harm  arising out of the ‘slow-onset’ impacts of climate change, including increased heat, drought, sea-level rise, water scarcity, food insecurity and air pollution, and ultimately the prospect of widespread violence, conflict and forced displacement in an increasingly inhospitable planet. The future is a foreign country, one might say: a dystopian place to which younger generations are currently being propelled through the collective (in)actions of those with the power to shape the course of climate change. 

What is being argued in Agostinho is that the respondent States are not complying with their positive obligations under the relevant rights – including Article 3 ECHR – read in light of their commitments under the 2015 Paris Agreement, which emerged out of COP21. The Paris Agreement can be taken to form the basis for delineating the measures States are duty-bound to undertake – including, as the applicants in Agostinho are arguing: 

a) decreasing the emissions on their territory and on the other territories over which they have jurisdiction;

b) prohibiting the export of fossil fuels;

c) compensating for their emissions arising from the import of goods; and

d) limiting the release of emissions abroad, 

with a view to limiting temperature rise to 1.5°C in comparison with pre-industrial levels, it being understood that this would significantly reduce the risks and effects of climate change. 

What is happening instead is that the escalating distress faced by the applicants in Agostinho and other children and young people around the world towards a situation that they are powerless to avert, and which only the application of the most robust individual and collective regulatory State action can mitigate, is being met and compounded by official failings at best, and indifference or callous disregard at worst. An attitude of indifference or disregard by State authorities towards a powerless person’s serious and/or potentially irreparable suffering that the State is aware of and in a position to alleviate also violates the right not to be subjected to ill-treatment. Such an approach is also fundamentally at odds with States’ duty under the Convention on the Rights of the Child, in all actions concerning children, to accord primacy to and act in accordance with the best interests of the child. 

The right not to be subjected to torture or ill-treatment is absolute as a matter of international human rights law, and that means that the obligations flowing from it are non-displaceable and non-negotiable. The application of this right in the context of climate change entails that States must take all reasonable steps within their power to stem the tide of climate change and avert the real risk of irreparable harm to which they are currently subjecting younger generations. The absolute right against torture and ill-treatment leaves no room for States to bypass these obligations. 

The future that younger generations and their offspring face can seem alien and distant, the true scope of the climate catastrophe currently being unleashed upon them almost unfathomable or, perhaps, too uncomfortable for us to process. Yet it is being shaped by the governments of today, and it constitutes a human rights violation of epic proportions. Taking all necessary steps to reverse it is a non-negotiable obligation of all States at COP26.