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About the HRLA

The Human Rights Lawyers Association (HRLA) is a membership organisation which aims to promote the effective legal protection of human rights and fundamental freedoms in the UK and to further research, education and training in the area of human rights practice. The Young Lawyers’ Committee (YLC) is constituted by young lawyers, trainees, policy workers, paralegals, and law students with a keen interest in human rights law, who work together to provide essential training and resources for young people considering a career in human rights. This is done through the HRLA’s annual Judicial Review Mooting Competition, Careers Day, and for the first time this year, the Lord Kerr Essay Competition, which was set up by the HRLA to honour the legacy and human rights contribution of Lord Brian Francis Kerr, Baron Kerr of Tonaghmore, the former Supreme Court Justice, following a generous donation by his son, Patrick Kerr.

About the author

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Cidalia is a final year Common Law LLB with French Language student at the University of Glasgow and has just completed a year of study at SciencesPo Paris. She is half-Burundian, half-Scottish and was born and raised in Nairobi, Kenya. Her interests lie in international human rights law, and her personal background and upbringing has motivated her to focus within this field particularly on developing African legal infrastructure and realising pan-African potential. Alongside her studies, she volunteers for SolidariTee- a youth-led charity raising funds to give grants to NGOs that provide legal aid to asylum-seekers and refugees. She also works with Protimos, an NGO which uses the law to promote economic growth and sustainable development across Africa.

Read Cidalia’s essay below. You can also read the essays for the runners-up here: https://www.hrla.org.uk/lord-kerr-essay-competition-2022-winners/

2022 Winning Essay by Cidalia Lewis-Lettington  

The interplay between climate change and Article 3 of the European Convention of Human Rights (“ECHR”) is a more recently emerging legal dimension, the topic of much recent debate. Climate change issues have largely, previously been argued about in the context of Articles 2 and 8 of the ECHR as seen in cases such as Urgenda (2015). However, a rapidly changing social context and the emergence of cases such as Duarte Agostinho (2020) have forced a discussion on whether phenomena such as eco-anxiety can amount to torture or inhuman or degrading treatment or punishment within Article 3 ECHR. The severity thresholds required for maltreatment within Article 3 are notoriously difficult to meet. Context dependent factors make it difficult to categorise eco-anxiety within this legislation. Despite eco-anxiety perhaps struggling to meet the requirements for torture or inhuman treatment or punishment, it is more than likely that it could be classified as degrading treatment or punishment. Throughout this assessment, it is important to remember that this hugely depends on the evolving social context, vulnerability of the victim and the role played by state responsibility, all of which will be discussed in this essay.

In order to properly assess eco-anxiety categorisation in this context, it is important to have a solid understanding of what exactly it is. The meaning and operationalization of the term ‘eco-anxiety’ have not been clearly established yet and there is a wide range of definitions and contexts to which it applies. A broad overview of the use of the term ‘eco-anxiety’ reveals an association with a vast range of negative emotions related to climate change and environmental threats. These include but are not limited to fear, loss, hopelessness, anger, a sense of suffocation and even depression. The definition provided by the American Psychology Association is the closest there currently is to a clear definition and is as follows: “the chronic fear of environmental cataclysm that comes from observing the seemingly irrevocable impact of climate change and the associated concerns for one’s future and that of the next generations”. For the purposes of this essay, we will use this definition coupled with the associated feelings mentioned above to create our understanding of what eco-anxiety is.

To accompany our understanding of eco-anxiety, we must also look at the meaning and normative parameters of torture, inhuman or degrading treatment or punishment under Article 3 ECHR. Article 3 enshrines the absolute right to protection against torture and inhuman or degrading treatment or punishment not subject to derogation. The simple, brief wording of Article 3 leaves it open to varied interpretation which can create obstacles to categorising eco-anxiety within it because of its ambiguity. Article 3 can be separated into three tiered forms of maltreatment that are an affront to physical and mental integrity: (i) torture, (ii) cruel or inhuman treatment or punishment, and (iii) degrading treatment or punishment. The differentiation between the three rests on the ‘kind purpose and severity of the particular punishment’. Torture is limited to a small number of straightforward cases of assault resulting in physical and mental anguish of an especially aggravated character. Whilst this category includes mental anguish cohesive with our definition of eco-anxiety, a purpose is required for inflicting the torture. This is something that would struggle to be proved in the context of eco-anxiety. Thus, it is not a tier of Article 3 that we will examine in this context because it would be exceedingly tenuous to try to attribute a purpose to the infliction of eco-anxiety, particularly because it is heavily subjective and can be self-invoked.

Inhuman treatment or punishment is described as being ‘premeditated…applied for hours at a stretch and causing either actual bodily injury or intense physical and mental suffering’.  Cassese suggests 3 elements necessary for inhuman treatment or punishment – the intent to ill-treat, severe suffering (psychological or physical) and an absence of justification for such suffering. The intent requirement would be difficult to reconcile with eco-anxiety. It is inconsistently applied by the courts so does not necessarily exclude eco-anxiety from being categorised within it. The description indicates a temporary nature of the maltreatment, something that is likely not the case with mental health issues such as eco-anxiety. Particularly in the current climate where these issues are growing and with it the phenomenon of eco-anxiety.

Degrading treatment or punishment is arguably the Article 3 tier of maltreatment that is easiest to reconcile with eco-anxiety. It is described as treatment or punishment that ‘humiliates or debases an individual in such a manner that shows a lack of respect for, or diminishes, his or her human dignity, or arouses feelings of fear, anguish and inferiority capable of breaking an individual’s moral and physical resistance’.

The publicity element is not a requirement here because humiliation can be personally conceived. Eco-anxiety without a doubt arouses the requisite feelings and can even humiliate or debase a victim through social stigmatisation. The obstacle one might encounter preventing eco-anxiety from amounting to degrading treatment or punishment is the requirement that the suffering and humiliation go beyond the inevitable suffering or humiliation resulting from legitimate treatment or punishment. In this context it is exceedingly difficult to identify what the legitimate treatment or punishment may be and perhaps that is the result of the previously limited application of Article 3. Thus, we see the rich jurisprudence surrounding the legislation being yet to have been adapted to include this kind of mental suffering, making it not so easily applicable. It is also difficult to pinpoint objectively verifiable acts or conditions that can be perceived as degrading because the elements of eco-anxiety are primarily psychological. Thus, we find ourselves in a situation where equating eco-anxiety with degrading treatment or punishment is indeed possible but is a hugely relative and subjective determination.

The argument that eco anxiety is capable of amounting to degrading treatment or punishment within the meaning of Article 3 ECHR is supported by the undeniable inclusion of mental suffering and psychological damage in the interpretation of the Article. This is reflected in cases such as First Greek (1969) and East African Asian (1981), which showed that degrading and/or inhuman treatment may be involved if psychological anguish reaches a sufficiently intense and serious level and that a physical manifestation is not essential. This ‘level’ is one that has evolved over time, the intensity of the requirement becoming decreasing mental health becomes more of a societal priority. The recognition of mental suffering in these earlier cases is significant because it demonstrates the gradual move away from solely physical considerations that might eliminate eco-anxiety’s potential to amount to degrading treatment or punishment. It is widely accepted that changing societal contexts and the development of attitudes towards mental health over time require that Article 3 be malleable enough to adapt, in order for it to be an effective living instrument of the international judiciary. In the same vein, human rights standards are evolving over time and mental health is becoming much more of a prominent societal discussion than it has previously been. Therefore, it seems only natural and just that the legislation and its interpretation evolve to reflect this. Thus, it is much more likely in current jurisprudence that mental suffering be given heavier consideration and is more likely to amount to degrading treatment or punishment. Mental health is becoming more of a societal preoccupation and priority, however, there is still stigma attached to it which results in social exclusion, feelings of anguish and depression, all of which can be part of eco-anxiety. The more someone might be marginalised as a result of the phenomenon, the more likely it is to amount to degrading treatment or punishment.

Marginalisation and vulnerability are huge factors in assessing whether eco-anxiety can amount to degrading treatment or punishment. This is particularly pertinent to the assessment of women, children and indigenous people as victims of eco-anxiety. Children are more vulnerable to the effects of climate change on mental health because they have stronger responses to extreme weather events which include Post-traumatic Stress Disorder (PTSD), depression and sleep disorders. Women are also more vulnerable to eco-anxiety, consistent with previous research that females experience greater anxiety than men due to hormonal influences or gender-specific trauma. Eco-anxiety tends to be more prevalent in indigenous communities because some live in areas prone to environmental disaster and they have an interdependence on the natural environment, with cultural and spiritual practices connecting to the natural world. Degrading treatment includes treatment that is humiliating and undignified and whether treatment reaches this level is dependent not only on the duration of the treatment or its physical or mental effects but also the health, sex, age, race and vulnerability of the victim. Discrimination based on race, sex, gender or age may occasion humiliation amounting to degrading treatment. The aforementioned groups are more susceptible to eco-anxiety, making them more vulnerable, and are more susceptible to discrimination on these grounds. Taking into account the vulnerability of a victim allows for a more context-sensitive assessment of factors which allows effective use of the legislation in this area. Failure to have regard for the needs of women, young people and indigenous people may amount to not only a physical but also a mental form of degrading or inhuman treatment. Due to the stigma that still exists around mental health, they may be socially excluded from their communities or forced to carry undue burdens, which is degrading treatment or punishment that Article 3 intends to protect against. This is particularly clear in the context of indigenous people where many cultures still view mental health as taboo or simply non-existent, creating severe, negative social and cultural implications for the victim as a result of eco-anxiety.

It is also useful in this context to examine the role of state responsibility in protecting against eco-anxiety. The presence of state responsibility strengthens the claim that eco-anxiety can amount to degrading treatment because it indicates the possible interpretation of an intention of the legislation to protect against it. For a Member State to incur responsibility for such treatment, they will need to have ‘had or ought to have had knowledge’ of the ill-treatment. Eco-anxiety is a recently emerging concept, but there is sufficient concrete research on it and public awareness of it to create a reasonable expectation that States would have knowledge of it. State responsibility will also arise from the omission of national authorities to take reasonable protective measures against the ill-treatment. In the context of eco-anxiety, protective measures could include imposing a legal framework on all businesses and institutions to curb emissions or ensuring there are sufficient mental health support provisions to aid victims. With regards to curbing emissions, there are some legislative frameworks that aim to curb emissions in member States such as congestion regulations for city centres, but this is by no means an extensive network. In addition, State governments do not seem to take responsibility for their own emissions. This was made clear by the carbon footprint of the recent COP26 climate summit which produced approximately 102,500 tons of carbon dioxide, 60% of which was estimated to come from international flights, the vast majority of which were private jets chartered by world leaders. Thus, it is arguable that States have huge responsibility for eco-anxiety because they are direct contributors to climate change. There is also a notable lack of provision throughout Europe of mental health services, with 56% of patients with major depression receiving no treatment at all. Therefore, the omission and incurred responsibility seems more than sufficient for the mental anguish associated with eco-anxiety to amount to degrading treatment.

The relationship between phenomena such as eco-anxiety and Article 3 maltreatment remains relatively new territory. The lack of clarity in this area can be attributed to infrequent invocation of Article 3 in climate change cases thus far and the subjective nature of mental suffering making it difficult to identify the threshold for maltreatment under Article 3. However, it seems clear that despite falling short of the requirements for torture and inhuman treatment or punishment, eco-anxiety can amount to degrading treatment within the meaning of Article 3 because of the suffering it entails and the resultant social exclusion, stigma, discrimination, and lack of access to support and protective frameworks by fault of national authorities.

 

References:

  1. Urgenda Foundation (on behalf of 886 individuals) v The State of the Netherlands (Ministry of Infrastructure and the Environment), First instance decision, HA ZA 13-1396, C/09/456689, ECLI:NL:RBDHA:2015:7145, ILDC 2456 (NL 2015), 24th June 2015, Netherlands; The Hague; District Court.
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