‘Is eco-anxiety capable of amounting to torture or to inhuman or degrading treatment or

punishment within the meaning of Article 3 ECHR?’

Eco-anxiety, broadly defined as an emotional reaction to the continuing degradation of the

Earth’s climate eliciting feelings of fear, worry and helplessness, is a concept that is gaining
traction in the public’s consciousness1. Given the relative novelty of eco-anxiety, an
exploration of the concept’s parameters will demonstrate that it impairs both the victim’s
cognitive and functional abilities and sits on a spectrum, ranging from direct eco-anxiety,
related to the psychological impact of directly experiencing the effects of climate change, and
indirect eco-anxiety, related to more abstract concerns about the state of the Earth’s climate.
Based on this sliding scale of severity, only the most extreme and direct forms of eco-anxiety
are likely to be capable of falling within the meaning of Article 3 ECHR, whilst more abstract,
indirect forms of eco-anxiety are unlikely, at least at present, to reach the required threshold
needed for Article 3 protection.

Eco-Anxiety: A Horizontal and Vertical Conception

In an attempt to provide clarity to the nebulous concept of eco-anxiety, Hogg finds that the
crux of the emotion rests in its cognitive-emotional and functional impairment2. Whilst this
understanding creates a sufficiently broad, horizontal range within which to capture the
variety of potential responses to the climate crisis, a concurrent vertical distinction is also
required to factor in intensity. At the less intense end of the spectrum, indirect eco-anxiety
may be more ruminative and constitute low, but persistent, levels of stress and worry. In
contrast, direct eco-anxiety is particularly intense as the sufferer’s anxiety stems from their
personal experience of the effects of climate change. The development of scientific research
into the link between human activity and climate degradation, such as the recent
International Panel on Climate Change report concluding that human activity is already

1
Andrew Gregory, ‘Eco-anxiety: fear of environmental doom weighs on young people’ (The Guardian, 6 October 2021)
https://www.theguardian.com/society/2021/oct/06/eco-anxiety-fear-of-environmental-doom-weighs-on-young-people
accessed 19 May 2022
2
Teaghan Hogg et al., ‘The Hogg Eco-Anxiety Scale: Development and validation of a multidimensional scale’ [2001] 71
Global Environment Change 1, 4
leading to inevitable and irreversible environmental damage3, will only serve to reinforce a
vertical conception of eco-anxiety based on proximity to harm. Likewise, an increasing
number of studies are demonstrating that natural disasters precipitated by climate are
leading “to direct psychological effects” such as panic attacks, insomnia, and obsessive
thinking, impairing the functional abilities of the sufferer4. This horizontal and vertical
understanding of eco-anxiety shall provide the basis for the subsequent assessment of Article
3 ECHR in this context.

Article 3 ECHR in an Environmental Context

Article 3 ECHR: “no one shall be subject to torture or to inhuman or degrading treatment or
punishment.”

The absolute nature of Article 3 cements the Article as one of fundamental importance in the
eyes of the Court5. However, despite the European Court of Human Rights (ECtHR) developing
an extensive jurisprudence on environmental issues6, Article 3 is rarely invoked in this
context7. Generally, it imposes a negative obligation on states to “refrain from inflicting
serious harm on persons within their jurisdiction8” but, in some cases, has also been found to
impose a positive obligation on states to provide protection against inhuman and degrading
treatment9. Rooted in the understanding of the Convention as a “living instrument10”, the
Court has “reserved to itself sufficient flexibility” to apply the Article in emerging contexts11.

3
IPCC, 2021, ‘Summary for Policymakers: Climate Change 2021: The Physical Science Basis. Contribution of Working Group I
to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change’ (CUP 2021)
<https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_SPM.pdf> accessed 19 May 2022
4
Judy Wu, Gaelen Snell, Hasina Samji, ‘Climate anxiety in young people: a call to action’ [2020] 4 The Lancet 435
5
Soering v UK (1989) Series A no. 161 [88], Pretty v. UK ECHR 2002-III [49]
6
Tim Eicke, ‘Human Rights and Climate Change: What Role for the European Court of Human Rights?’ [2021] 3 E.H.R.L.R.
262, 265
7
Corina Heri, ‘The ECtHR’s Pending Climate Change Case: What’s III-Treatment got to do with it?’ (EJIL: Talk!, 19 May 2022)
<EJIL: Talk! – Blog of the European Journal of International Law (ejiltalk.org)> accessed 19 May 2022
8
Pretty v. UK App ECHR 2002-III [50]
9
A v UK App ECHR 2002-X, Kudla v Poland [GC] ECHR 2000-XI)
10
Tyrer v UK (1978) Series A no. 26 [31]
11
Pretty (n 8)
Typically, Article 3 cases concern “proscribed forms of treatment emanating from
intentionally inflicted acts of State agents or public authorities.12” However, given that
sufferers of eco-anxiety are likely to be free citizens, independent of state control, a question
of causation arises. The Court has been clear that Convention rights are not to be applied in
a vacuum13 and should be read in harmony with other international law standards and
obligations14. This reading of the Convention is particularly important in environmental cases,
given the transboundary issues at stake. International treaties such as the Paris Agreement,
signed by 193 parties, indicate a broad, harmonised willingness amongst signatory states to,
inter alia, “promote and consider their respective obligations on human rights […] and the
rights of children15” when taking action to address climate change. Moreover, other UN
human rights instruments, such as the UN Convention on the Rights of the Child, require
states to “ensure to the maximum extent possible the […] development of the child.16” Thus,
there appears to be “sufficiently accepted standards17” across many nation-states to find a
causal link between a state’s actions or inaction to address climate change and harm, both
physical and psychological, emanating from the manifestation of the failure of states to take
adequate action on climate change.

A) ‘Inhuman Treatment or Punishment’

In order to be classified as inhuman treatment or punishment, degrading treatment or

punishment or torture for the purposes of Article 3, the act complained of must meet a
“minimum level of harm18”. This minimum is to be assessed “on all the circumstances of the
case, such as the duration of the treatment, its physical or mental effects and, in some cases,
the sex, age and state of health of the victim.19”

12
Pretty (n 8)
13
Öcalan v Turkey [GC] ECHR 2005-IV
14
Demir and Baykara v Turkey [GC] App no. 34503/97 (ECtHR, 12 November 2008)
15
The Paris Agreement (Paris, 2015) United Nations Treaty Series, 3156, Preamble
16
Convention on the Rights of the Child (New York, 1989) United Nations Treaty Series, 1577, Article 6.2
17
Soering v UK (1989) Series A no 161 [102]
18
Ireland v UK (1978) Series A no 25 [162]
19
Ibid.
The minimum level of harm required for ill-treatment to amount to inhuman treatment or
punishment involves “actual bodily harm or intense physical or mental suffering20.” Over
time, the Court has expanded on the nature of the mental suffering required, finding in El
Masri v Former Yugoslav Republic of Macedonia, that a “permanent state of anxiety owing to
the [applicant’s] uncertainty about his fate during the interrogation21” amounted to ill-
treatment in breach of Article 3. Where there is ‘’no prospect of an improvement in the
situation22”, the Court has also been inclined to find treatment amounting to inhuman
treatment. In Duarte Agostinho and Others v. Portugal and Others23, a pending case involving
child applicants who live in areas affected by wildfires in 2017, it is clear that where the threat
of climate degradation is more immediate, the permanence, uncertainty, and intensity of the
anxiety generated by the degradation of the climate and the inadequacy of state action are
exacerbated24. Whilst the case is still pending, that the Court raised Article 3 proprio motu
indicates that it may be open to more direct forms of eco-anxiety meeting the minimum
threshold for inhuman treatment.

However, where states have mechanisms to assess their climate change targets, it will be
harder for indirect eco-anxiety to pass this minimum threshold. In A and Others v UK, the
applicants’ anxiety and distress could not be described as meeting the minimum level of harm,
as, inter alia, the Special Immigration Appeals Commission was able to review the continuing
case for detention every six months25. Parallel mechanisms can be found in international
environmental treaties, such as Article 7 and 9 of the Paris Agreement, which oblige signatory
states to review compliance with their emissions targets, thereby facilitating the prospect of
improvement. Where a victim’s eco-anxiety is indirect, its intensity is likely to be mitigated by
this prospect of improvement. However, unlike the reversible situation of the detainees in A
and Others, where an applicant directly experiences the effects of climate degradation, duties
to review are less likely to negate the intensity of the psychological impact due to the

20
Ireland (n 18) [167]
21
El-Masri v the former Yugoslav Republic of Macedonia [GC] App no. 39630/09 (ECtHR, 13 December 2012) [202]
22
Clasens v. Belgium App no. 26564/16 (ECtHR, 28 May 2019) [36]
23
Duarte Agostinho and Others v. Portugal and Others (Communicated Case) App no 39371/20
24
‘European Court of Human Rights – Application form’ (Youth 4 Climate Justice, 3 September 2020)
<https://youth4climatejustice.org/wp-content/uploads/2020/12/Application-form-annex.pdf> accessed 20 May 2022
25
A. and Others v. the United Kingdom [GC] App no. 3455/05 (ECtHR, 19 February 2009) 135
irreversibility of climate change, suggesting that only direct eco-anxiety could meet the
required threshold for inhuman treatment.

B) Seuil Minimum: ‘Degrading Treatment or Punishment’

Where eco-anxiety falls short of inhuman treatment, it may well still be classified as
‘degrading treatment’ if it ‘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.26’

Whilst concerning a case of physical abuse amongst private individuals, the Court in Premininy
v Russia found that the psychological abuse leaving the victim “afraid, depressed and
hopeless27” met the required threshold of harm for degrading treatment. Part of the Court’s
reasoning hinged upon the long-term consequences of the ill-treatment on the applicant’s
mental health and the vulnerability of the applicant. In the case of the former, an increasing
number of studies are linking climate-related “exposure to chronic stress in childhood” to a
“long-lasting impact […] of developing mental health problems.28” In the case of the latter,
children, as a group, are particularly vulnerable to the effects of intense stress29. Despite some
hesitancy at the broadening concept of group vulnerability within the ECtHR’s jurisprudence,
stemming from a concern about the development of social rights30, the general approach of
the court is expansive. In Atesoglu v Turkey, the Court made clear that treatment that does
not meet the threshold of severity for a violation of Article 3 if inflicted on an adult may
“nevertheless reach that threshold if inflicted on a child”31 and the majority in MSS v Greece
found that an asylum seeker’s dependence on state support and the institutional
shortcomings of the Greek asylum system were sufficient factors for the Court to find the
applicant particularly vulnerable.

26
Ireland (n 18) 167
27
Premininy v. Russia App no. 44973/04 (ECtHR, 10 February 2011) 81
28
Caroline Hickman et al., ‘Climate anxiety in children and young people and their beliefs about government responses to
climate change: a global survey’ [2021] 5 Lancet Planet Health 863, 864
29
Wu (n 4)
30
M.S.S. v. Belgium and Greece [GC] App no. 30696/09, (ECtHR 21 January 2011) Judge Sajo
31
Ateşoğlu v. Turkey App no. 53645/10, (ECtHR 20 January 2015) 27
Adopting Neal’s dual understanding of vulnerability - based on a person’s dependence upon
the cooperation of others and their penetrability to various harms32 - children are uniquely
vulnerable in the climate context. Children do not just depend upon the state but are entirely
reliant upon the state to take preventative action to reduce their penetrability to both
psychological and physical harm arising from climate change. Where a child’s eco-anxiety is
linked to their lived experience of climate degradation, their reliance is more intense, their
exposure to harm is exacerbated and the child’s subjective belief of this will be relevant33.
Coupled with a child’s lack of autonomy and independence, when viewed through the
“magnifying glass34” of group vulnerability, it is likely that direct and indirect eco-anxiety will
constitute degrading treatment for children.

C) Seuil Superieur: ‘Torture’

As to whether eco-anxiety can ever constitute torture, the act needs to go beyond inhuman
treatment and amount to “serious and cruel suffering35.” Owing to the “special stigma36”
attached to torture, the Court has yet to fold psychological torture into the broader definition
of torture37. Whilst the Court is not rigidly bound by its previous interpretations, the Court is
much more likely to adopt an incremental approach to protection, as it did with cases
concerning abortion and respect for same-sex relationships, following which, the court can
then invoke general principles of the court to provide greater protection in the future38. It
would be quite the judicial leap to immediately characterise eco-anxiety, even in its most
direct and extreme form, as torture. However, given that the Court has recognised the need
to define torture in light of the “increasingly high standard being required in this area of

32
Mary Neal, ‘Not gods but animals: human dignity and vulnerability’, [2012] 33 Liverpool L Review 186, 198
33
Bouyid v. Belgium [GC] App no. 23380/09 (ECHR, 28 September 2015) 87
34
Lourdes Peroni and Alexandra Timmer, ‘Vulnerable Groups: the promise of an emerging European Human Rights
Convention law’ [2013] 11 International Journal of Constitutional Law 1056, 1079
35
Ireland (n 18) 167
36
Ibid.
37
Erkan Orhan v. Turkey App no. 19497/02 (ECtHR, 1 March 2007) 353
38
Janneke Gerards, ‘Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights’
[2018] 18 Human Rights Law Review 495, 508
protection,39” the interpretative levers are available, should the court consider the
prevalence of eco-anxiety has obtained a special stigma worthy of classification as torture.

Conclusion

As has been demonstrated, the interplay between the effects of climate degradation and the
Convention is one that will require increasingly supple judicial interpretations of ECHR
Articles. Equally, whilst falling outside the scope of this discussion, overly strict interpretations
of procedural requirements related to jurisdiction, the duty to exhaust internal remedies and
the burden of proof in climate cases may present unwelcome barriers to effective judicial
protection. However, as states continue to bind themselves to international obligations to
reduce their emissions, a clearer causal relationship between state action or inaction and the
harm caused by climate degradation develops. Thus, where a victim’s eco-anxiety is based on
direct experience of climate degradation, aggravating the severity of the threat, the likelihood
of such treatment passing the minimum threshold of harm for inhuman or degrading
treatment or punishment is increased. Coupled with children’s innate group vulnerability and
their reliance upon the state, the case for protection under Article 3 is more compelling.
However, it is questionable whether eco-anxiety can ever reach a level of intensity required
to be deemed as torture, not least without pre-existing general principles to call upon.

Candidate 99362

39
Selmouni v. France [GC] 1999-V [101]
 Bibliography

Primary Sources:

Table of Cases

A v UK App ECHR 2002-X

A. and Others v. the United Kingdom [GC] App no. 3455/05 (ECtHR, 19 February 2009)
Ateşoğlu v. Turkey App no. 53645/10, (ECtHR 20 January 2015)
Bouyid v. Belgium [GC] App no. 23380/09 (ECHR, 28 September 2015)
Clasens v. Belgium App no. 26564/16 (ECtHR, 28 May 2019)
Demir and Baykara v Turkey [GC] App no. 34503/97 (ECtHR, 12 November 2008)
Duarte Agostinho and Others v. Portugal and Others (Communicated Case) App no 39371/20
El-Masri v the former Yugoslav Republic of Macedonia [GC] App no. 39630/09 (ECtHR, 13 December
2012)
Erkan Orhan v. Turkey App no. 19497/02 (ECtHR, 1 March 2007)
Ireland v UK (1978) Series A no 25
Kudla v Poland [GC] ECHR 2000-XI
M.S.S. v. Belgium and Greece [GC] App no. 30696/09, (ECtHR 21 January 2011)
Öcalan v Turkey [GC] ECHR 2005-IV
Premininy v. Russia App no. 44973/04 (ECtHR, 10 February 2011)
Pretty v. UK App ECHR 2002-III
Selmouni v. France [GC] 1999-V
Soering v UK (1989) Series A no. 161
Tyrer v UK (1978) Series A no. 26

Miscellaneous

‘European Court of Human Rights – Application form’ (Youth 4 Climate Justice, 3 September 2020)
<https://youth4climatejustice.org/wp-content/uploads/2020/12/Application-form-annex.pdf>
accessed 20 May 2022

Convention on the Rights of the Child (New York, 1989) United Nations Treaty Series, 1577

IPCC, 2021, ‘Summary for Policymakers: Climate Change 2021: The Physical Science Basis. Contribution
of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change’
(CUP 2021) <https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_SPM.pdf>
accessed 19 May 2022

The Paris Agreement (Paris, 2015) United Nations Treaty Series, 3156

Secondary Sources:

Eicke T, ‘Human Rights and Climate Change: What Role for the European Court of Human Rights?’
[2021] 3 E.H.R.L.R. 262

Gerards J, ‘Margin of Appreciation and Incrementalism in the Case Law of the European Court of
Human Rights’ [2018] 18 Human Rights Law Review 495
Gregory E, ‘Eco-anxiety: fear of environmental doom weighs on young people’ (The Guardian, 6
October 2021) https://www.theguardian.com/society/2021/oct/06/eco-anxiety-fear-of-
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Heri C, ‘The ECtHR’s Pending Climate Change Case: What’s III-Treatment got to do with it?’ (EJIL:
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[2001] 71 Global Environment Change 1

Neal M, ‘Not gods but animals: human dignity and vulnerability’, [2012] 33 Liverpool L Review 186

Peroni L and Timmer A, ‘Vulnerable Groups: the promise of an emerging European Human Rights
Convention law’ [2013] 11 International Journal of Constitutional Law 1056

Wu J, Gaelen Snell, Hasina Samji, ‘Climate anxiety in young people: a call to action’ [2020] 4 The
Lancet 43