Climate Protests from a Human Rights Perspective
Introduction
The presentation discusses climate protests from a human rights perspective, referencing various legal cases, international conventions, and the evolving understanding of environmental rights as human rights.
Examples of Climate Protests and Legal Repercussions
Just Stop Oil Protests:
Five protesters jailed for blocking the M25 motorway in the UK. This protest highlights the tension between the right to protest and the disruption of essential infrastructure.
Prosecutors estimated the economic cost at £765,000 and police costs at over £1.1 million, illustrating the significant financial burden such protests can impose on society.
Protests affected more than 700,000 vehicles, demonstrating the widespread impact of these actions on daily life.
Other Examples:
Climate activists doused the US Constitution in red powder and were sentenced to prison, raising questions about the proportionality of penalties for symbolic acts of protest.
An activist in Bavaria received a three-month prison sentence for a road blockade, reflecting varying legal approaches to similar protest actions across different jurisdictions.
Climate activists who threw soup at Van Gogh's 'Sunflowers' were found guilty, sparking debate about the appropriateness of targeting cultural heritage in environmental activism.
A German court imposed a nearly two-year jail sentence for participating in a road blockade, showcasing the potential for severe legal consequences for protesters.
Just Stop Oil protesters jailed for Dartford Crossing protest, where Morgan Trowland and Marcus Decker scaled the bridge, emphasizing the risks associated with high-profile, disruptive protests.
Limits of Legal Protection for Environmental Activists
Aarhus Convention (Article 3(8)):
Ensures that individuals exercising their rights under the convention are not penalized, fined, persecuted, or harassed, which aims to protect environmental defenders.
Covers rights of access to information, public participation in decision-making, and access to justice, crucial for enabling informed and effective environmental advocacy.
Applies to situations where the public seeks to protect their right to a healthy environment, reinforcing the link between environmental protection and human rights.
Argument of Necessity:
Involves arguing that actions were justified due to an extreme (climate) emergency, a defense that balances immediate unlawful actions against long-term threats.
Example: In 2008, Greenpeace activists were acquitted for damaging a coal-fired power plant chimney because the damage threatened by climate change was deemed greater than the damage caused by the protest, illustrating a successful application of the necessity defense.
Such exemptions also occur in continental Europe, e.g., in France and Switzerland, reflecting a broader legal acceptance under specific circumstances.
The Aarhus Convention
Three Pillars:
Access to information: public, passive obligation, active obligation (governments must proactively disseminate environmental information).
Public participation in decision-making: public concerned, Annex I and other activities with significant effects (EIA, IED, Natura 2000, SEVESO III), plans and programmes, general legal regulation (ensuring public input in environmental decisions).
Access to justice: public (concerned), denied information, decisions from pillar II (EIA, IED, NATURA 2000, SEVESO III), violation of other provisions of national law relating to the environment (providing legal recourse for environmental grievances).
Participatory Rights: Legal Sources
European Convention on Human Rights:
Right to a fair trial (Article 6).
Freedom of expression (Article 10).
Freedom of assembly and association (Article 11).
Right to an effective remedy (Article 13).
EU Charter:
Freedom of expression and information (Article 11).
Freedom of assembly and of association (Article 12).
Workers' right to information and consultation within the undertaking (Article 27).
Environmental protection (Article 37).
Right to vote (Article 39).
Right to good administration (Article 41).
Right of access to documents (Article 42).
Right to an effective remedy and to a fair trial (Article 47).
International Law: Various international treaties and agreements.
EU Law: Directives and regulations pertaining to environmental protection.
Constitutional Law: National constitutions guaranteeing environmental rights.
National Law: Specific environmental protection laws.
Direct applicability of EU law: Ensuring immediate enforcement of EU regulations.
Specific Directives (EIA, IED, access to information): EU directives mandating environmental impact assessments and access to information.
Specific Acts (EIA, IED, access to information): National laws implementing EU directives.
History of Environmental Protections
17th Century: Nature conservation and professional forestry (Prussia, France) (early efforts in systematic resource management).
19th Century: Urban air pollution (UK – Akali Act 1863), utopian return to nature (USA) (responses to industrialization).
1960s: Air and river pollution, industrial accidents (heightened awareness due to environmental disasters).
Systemic Environmental Protection in the U.S. (Earth Day since 1970) (institutionalization of environmental protection).
EU policy-making (1st Action Plan 1972) (establishment of environmental policies at the European level).
Progress in International Protection (United Nations Conference 1972) (global cooperation on environmental issues).
1980s: Anti-nuclear activism, GMO, ozone layer (concerns over nuclear safety, biotechnology, and atmospheric damage).
Activator of Revolutionary Changes (environmental issues driving significant social and political change).
1990s: Direct actions after 2000 (rise of more confrontational protest tactics).
Climate protests since 2006, globally and in a coordinated manner since 2019 (increasing mobilization and coordination of climate activism).
Protests in China, India, Bangladesh, attacks on environmental defenders (Africa, South America, Europe) (global scope of protests and risks faced by activists).
Debates on Public Interest Issues
McLibel Case (Steel and Morris v. the United Kingdom, 68416/01):
Defamation lawsuit filed by McDonald's against two activists criticizing the company's environmental and working conditions (example of a SLAPP suit).
ECtHR: The verdict against the activists was disproportionate and constituted a violation of Article 10 (freedom of expression) (emphasizing the importance of protecting critical speech).
Stressed the importance of freedom of expression in public debate on issues of general interest, such as environmental protection (highlighting the role of activism in public discourse).
Vides Aizsardzības Klubs v. Latvia (57829/00):
Environmental association published a report accusing the mayor of illegal decision-making; Courts Ordered to Apologize (example of protecting environmental watchdogs).
ECtHR: The organization fulfilled its role as a ‘watchdog’ and expressed a value judgment (supporting the role of environmental organizations in monitoring governance).
Czech Constitutional Court Finding I. ÚS 2956/23:
Greenpeace edited an advertisement of ČEZ (a power company) on social networks entitled ‘Lighting up Christmas Trees’ (parody as a form of protest).
Court: CEZ is obliged to bear the tolerable level of criticism of its activities, even using parody (recognizing the legitimacy of critical and creative forms of protest).
The spot drew attention to the general issue of environmental protection, particularly in the context of climate change (highlighting the communicative power of protest).
The content was factual criticism of CEZ, not a call for violence (distinguishing between legitimate criticism and unlawful incitement).
Tănăsoaica v. Romania (3490/03):
ECtHR inferred a violation of Article 10 based on a complaint by a journalist convicted of defamation for publishing an article on pollution by a private company (protecting journalistic freedom in environmental reporting).
The press is entitled to convey information and ideas on all matters of general interest (affirming the crucial role of the press in environmental issues).
Czech Constitutional Court Finding I. ÚS 3254/22:
A journalist's request for a digital relief model of the Czech Republic was postponed due to a high fee (CZK 2,998,037) (barriers to accessing environmental information).
ÚS: Journalists play a key role in informing the public about environmental policies and the environment (emphasizing the importance of accessible information for public awareness).
Anti-SLAPP Directive 2024/1069
Provides safeguards against manifestly unfounded claims or abusive court proceedings against those engaged in public participation (protecting activists from strategic lawsuits).
Main Safeguards:
Early dismissal of claims without merit (efficiently addressing meritless lawsuits).
The claimant may bear all legal costs if proceedings are abusive (deterring abusive lawsuits).
Judges may impose penalties on those initiating SLAPP cases (punishing the misuse of legal processes).
EU Member States must refuse to recognize or enforce judgments from third countries that are manifestly unfounded or abusive (preventing the enforcement of unjust judgments).
Facilitates the involvement of associations, organizations, and trade unions in assisting defendants (enhancing support for those targeted by SLAPPs).
Comprehensive information on available procedural safeguards and remedies must be provided in a central location (ensuring accessibility of legal protections).
Timing: Member States must comply with the Directive by May 7, 2026. The Commission must assess the application of the Directive by May 7, 2030 (timeline for implementation and evaluation).
Direct Actions
Hashman and Harrup v. the United Kingdom (25594/94):
Disruption of a fox hunt; ECtHR: infringement of Article 10, the protest was not unlawful (protecting freedom of expression in animal rights protests).
Steel and Others v. the United Kingdom (24838/94):
Disruption of capercaillie hunting, blockage of motorway expansion (environmental protests causing public disruption).
ECtHR: direct actions inherently disturb public order; Sentences of detention were appropriate (balancing protest rights with public order).
Drieman and Others v. Norway (33678/96):
A criminal fine for blocking whaling was within the national authorities' margin of discretion (national discretion in regulating protests).
Lucas v. the United Kingdom (39013/02):
ECtHR confirmed detention and fine for blocking the road in protest against nuclear submarine preservation (upholding penalties for disruptive protests).
Barraco v. France (31684/05):
ECtHR upheld a suspended prison sentence for obstructing a highway during a trade union protest (penalties for obstructing public infrastructure).
Bumbeș v. Romania (18079/15):
Protest against planned mining in a UNESCO-protected area; activists strapped themselves to the entrance barrier of the main government building and put up banners (protests targeting government actions).
ECtHR: violation of Articles 10 and 11 of the Convention; the importance of public debate on issues of public interest was not sufficiently addressed (protecting protest rights on significant public issues).
Bryan and Others v. Russia (22515/14):
Greenpeace activists seize an oil rig (direct action targeting oil infrastructure).
ECtHR: violation of Articles 5 and 10; unlawful deprivation of liberty and interference with freedom of expression (protecting activists' rights during protests).
Friedrich and Others v. Poland (25344/20):
Greenpeace activists enter a port to block entry of a coal-carrying cargo ship (protests against coal imports).
ECtHR: violation of Articles 5 and 10; captains arrested and held in custody for more than 35 hours (protecting activists from excessive detention).
Switzerland and Unapproved Demonstration in Banks (2019)
Basel: The court acquitted.
Lausanne: Court reduced the fine to a symbolic CHF 100. (ongoing)
Zurich: Court upheld sentences of 30-40 days conditionally. (ongoing)
Geneva: Painting red hands on the facade of the bank; Federal court rejects arguments of extreme necessity (actions against financial institutions).
Painting on the facade of the bank is not an extreme necessity (narrow interpretation of the necessity defense).
The Bank does not have a direct impact on climate change and its related impacts.
Nor is such conduct protected by Articles 10 and 11 of the ECHR, since it constitutes damage to property, an act which must be excluded from the scope of the Convention.
Federal court rejected this: “The political actions of climate activists are idealistic, altruistic and therefore ethically respectable”, but the attribution of honourable motives in damaging property or when the basic policy is not shared by the majority of society should be ruled out.
Furthermore, judges questioned the ‘calls for civil disobedience’ during the climate protests.
As these challenges call into question "the democratic legitimacy of both the law (…) and the authorities responsible for its application".
France and the Stealing of President Portraits (2019)
Activists took down 151 of Macron's official portraits from city halls, leading to house searches and police custody for 128 activists (protests targeting symbols of authority).
In 56 cases, 88 people were charged.
Most protesters were released on the grounds of extreme need and freedom of expression.
However, the Court of Cassation refused to meet the conditions of extreme emergency in 2021.
The court also acknowledged that DNA sampling by some activists was disproportionate to this type of nonviolent action (debates over proportionality of law enforcement measures).
Approaches to Environmental Protests
A lenient approach:
Peaceful demonstrations, even unauthorized (tolerance of non-violent civil disobedience).
Blocking of roads by agricultural technology, provided that it is not used to harm health (Kudrevičius and others v. Lithuania, 37553/05) (specific allowances for agricultural protests).
Protests during the G8 summit, although there were extremists with violent intentions (Schwabe and M.G. v. Germany, 8080/08 and 8577/08) (acknowledging the right to protest even with potential for violence by fringe elements).
Obstructive protest against tree felling in a public park (Chernega and others against Ukraine, 74768/10) (protecting protests against environmental damage).
Stricter approach:
Planned, well-thought-out actions with disproportionate consequences (assessing the impact of protest actions).
Intervention in private property, even if it is under the regime of Articles 10 and 11 of the Convention (dealer's house) (limits to protest rights on private property).
Tough procedure:
Actions without context.
Distinctive behavior.
An individual does not lose the protection of Article 11 of the Convention as a result of sporadic occurrences of violence by other participants As long as his intentions and actions remain peaceful (Frumkin against Russia, 74568/12) (protecting peaceful protesters from actions of violent individuals).
Backbone infrastructure.
Blocking with consequences (costs, danger to human health).
Repeated infringements.
Legal Perspectives on Protests
R in Trowland and Decker (21. 4. 2023):
The role of the court is to apply the law, not to express opinions on the protest (separation of legal judgment from personal opinion).
Protests are tolerated in liberal democracies, but with restrictions (balancing protest rights with legal boundaries).
No society allows a blank check when it comes to what is allowed (limits to acceptable protest behavior).
Examples of Imprisonment Terms
Examples of imprisonment terms received by climate protesters:
2 years / 20 months imprisonment
5 years / 4 years / 4 years / 4 years / 4 years imprisonment
3 months imprisonment
18 months / 18 months imprisonment
22 months imprisonment
3 years / 2 years and 7 months imprisonment
Overview of Climate Protests (2024)
A table summarizing various climate protests in 2024, including the date, organizer, aim, development, number of participants, and source.
(Note: The table includes protests in Germany, Norway, Romania, Switzerland, France, Netherlands, United Kingdom, USA, Belgium, Australia, South Africa, Italy, Poland, Greece, Spain, and India.)
Judgment of the Regional Court in Brno of 9. 2. 2023, Ref. 34 A 7/2022-35
a fine of CZK 1,800 and the obligation to pay the costs of the proceedings in the amount of CZK 1,000
Court: This is not necessity.
‘If the plaintiff’s objective was to draw attention to the risks associated with the climate crisis and to encourage responsible politicians to take action, that objective can also be effectively achieved by acting in accordance with the law. If the plaintiff sought greater publicity, the legality or illegality of the conduct is the key criterion determining publicity. On the contrary, many original ways of drawing attention to the climate crisis can be found, which have had and have a global reach and are not illegal.”
Resolution of the Constitutional Court I.ÚS 10/23, IV.ÚS 209/23, IV.ÚS 284/23, II.ÚS 250/23
fines in the amount of CZK 4 000/8 000 and the obligation to reimburse the costs of proceedings in the amount of CZK 1 000.
SAC (Supreme Administrative Court): Breaking into the mine was not the only way for the complainant to express her opinion, since she could protest against lignite mining elsewhere and otherwise.
Constitutional Court: As regards the allegations of political motives of the complainant, it cannot be overlooked that the complainant was penalised in misdemeanour proceedings by a fine in the order of thousands of CZK.
Regional Court in Ústí nad Labem: Participants in the protest in the Bílina mine in 2018 must pay for the damage (CZK 661,000).
Finding II. ÚS 1022/21 – Illegal request for identification immediately upon arrival at the station in the municipality where the Klimakemp took place
What matters is whether the event was a peaceful gathering.
There is no indication that the event is not a peaceful assembly, i.e. that there should be (incitement to) violence or massive criminal activity during the event.
According to the Constitutional Court, trespassing on private land and blocking mining facilities for several hours by the mere presence of persons cannot be described as such activities.
The publicly declared aim of the peaceful blockade was to express opposition to breaking the limits of lignite mining in the Bílina mine and to stimulate a fundamental debate on climate change and related problems.
To sum up, the constitutional order does not exclude from its protection assemblies held for the purpose of protecting the environment, even if they deliberately violate the law in order to warn of a threat to the general interest (i.e. civil disobedience).
The Existence of Another Satisfactional Solution?
KLIMASENIORINNEN SCHWEIZ VEREIN AND OTHERS v. Switzerland (53600/20)
Infringement of Articles 8 and 13: States are required to put in place an appropriate climate protection system, consisting of a binding national regulatory framework and adequate subsequent implementation.
Measures must be geared towards substantial and progressive reductions in greenhouse gas emissions with a view to achieving climate neutrality in the next 30 years = the road to court closed
Judgment of the Supreme Administrative Court ref. 9 As 264/2023-128 (Climate Action II) = state on the edge of legality, the MoE questions the role of the public concerned
Mitigation measures: The Czech Republic shares obligations with other Member States, in particular as of 2030
Direct effect of the unspeakable adjustment: especially air and water
Janecek (C-237/07), ClientEarth (C-404/13, Ambient air quality assessment and management): The persons concerned must be able to request the adoption of air pollution action plans.
Folk (C-529/15, Environmental Liability Directive): Persons holding a fishing licence must be able to initiate a review procedure before a court or other competent public authority in accordance with Articles 12 and 13 of the Directive.
Protect Natur-, Arten- und Landschaftschutz Umweltorganisation (C-664/15, Water Framework Directive): NGOs must be able to challenge a permit under EU law for a river water abstraction project to produce snow for a ski resort.
Measures and Strong Remediation Against Protesting
New arrangements (United Kingdom, Australia, Italy)
Tougher sanctions
Prohibition of restrictions on the operation of backbone infrastructure
Use of existing arrangements
Preventive detention, house arrest (Germany, France, Netherlands)
General bans on demonstrations in certain places (Germany, France)
Efforts to disband NGOs (France)
DOMENJOUD v. France (34749/16, 79607/17) - An order of house arrest against two French citizens, Cédric and Joël Domenjoud, on the basis of the Emergency Act.
ECtHR: 1) The measures, although restrictive, were based on relevant and sufficient grounds and on specific aspects of his behaviour and criminal record, which indicated a serious risk of participating in highly violent disturbances. 2) There is no indication that he personally contemplated participating in or helping to organise violent protests. Nor was it found to encourage or even support such actions.
Generalstaatsanwaltschaft München
Ist die,,Letzte Generation" eine kriminelle Vereinigung?
Jury finds Greenpeace liable for more than $660 million in relation to pipeline protest
The lawsuit, brought against Greenpeace USA, Netherlands-based Greenpeace International and Washington DC-based Greenpeace Fund, revolved around protests against the construction of the Dakota Access Pipeline near the Standing Rock Sioux Reservation in 2016 and 2017.
Energy Transfer accused Greenpeace of carrying out a scheme to stop the pipeline's construction.
Peaceful protest is an inherent American right; however, violent and destructive protest is unlawful and unacceptable said Cox.
Last month Greenpeace International filed its own claim against Energy Transfer in a Dutch court using the European Union's anti-SLAPP legislation, seeking to recover the damages and costs the organization has incurred as a result of the company's lawsuits.