Human Rights and Climate Change under the ECHR

Human Rights and Climate Change under the ECHR.

By William Upton KC and Jemima Lovatt

On the 9th April 2024, the European Court of Human Rights handed down three decisions in cases brought by applicants contending that the respondent governments had violated the European Convention on Human Rights by failing to take adequate measures to combat climate change. The three cases were all heard by the same judges, and a number of other cases were adjourned pending the decisions in these cases. Here we summarise the decisions.

The decision in the Swiss case is the first time that the Court has recognised climate change as a significant threat to human rights, requiring effective action from states to address its impacts.  The rejection by the Court of the other two cases, against Portugal and France, does not detract from this important landmark in the Court’s jurisprudence.  As the decisions were taken by the judges sitting in Grand Chamber, they are final and there is no further right of appeal from them.

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no.53600/20)

The case of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland was brought by four women and a Swiss association representing older women concerned about the impact of climate change. They argued that Swiss authorities hadn’t done enough to mitigate climate change’s effects and had thus violated their rights under the Convention.

The Court found a violation of Article 8 (the right to respect for private and family life) due to Switzerland’s failure to provide effective protection from the adverse effects of climate change on health, well-being, and quality of life. It also unanimously found a violation of Article 6.1 because the association’s domestic legal action had been rejected by an administrative authority and by the national courts at two levels of jurisdiction on the basis of inadequate and insufficient considerations.

Although the individual applicants’ complaints were declared inadmissible, the applicant association was granted the right to bring a complaint on behalf of affected individuals. The Court highlighted the duty of states to adopt regulations and measures to mitigate climate change’s adverse effects, based on international commitments and scientific evidence.

Switzerland was criticised for gaps in its domestic regulatory framework, including failure to quantify national greenhouse gas emissions limitations and meet past emission reduction targets. The Court emphasised the importance of national courts in climate change litigation and access to justice in this context.

As for remedies, the Court awarded the applicant association its legal costs and expenses. No damages were awarded, as no claim had been made for them. The Court did call on Switzerland, under Article 46, to adopt measures to comply with the judgment, leaving specific actions to the Swiss Confederation’s discretion, supervised by the Committee of Ministers.  The Court considered that, having regard to the complexity and the nature of the issues involved, it was unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the judgment.

There was one dissent amongst the 17 judges.  The British Judge, Judge Eicke, expressed a partly dissenting and partly concurring opinion, which is annexed to the judgment.  He agreed that there had been a violation of Article 6 (for different reasons), but not of article 8. His concern is that, whilst sharing the very real sense of and need for urgency in relation to the fight against anthropogenic climate change,  the Court “has gone well beyond what I consider to be, as a matter of international law, the permissible limits of evolutive interpretation” of the European Convention on Human Rights.  His opinion is the first in what may prove to be a considerable body of legal criticism of this decision.  But it does not detract from the fact that the main Court has accepted that the human rights of present and future generations are in issue here.  Their stated overall rationale (§ 499) is that “[i]n view of the urgency of combating the adverse effects of climate change and the severity of its consequences, including the grave risk of their irreversibility, States should take adequate action notably through suitable general measures to secure not only the Convention rights of individuals who are currently affected by climate change, but also those individuals within their jurisdiction whose enjoyment of Convention rights may be severely and irreversibly affected in the future in the absence of timely action.”

Duarte Agostinho and Others v. Portugal and 32 other States (application 39371/20)

In the case of Duarte Agostinho and Others v Portugal and 32 Other States, the applicants argued that the respondent states, including Portugal and 32 others, had not fulfilled their obligations under the Convention to protect their right to life (Article 2), the right to respect for private and family life (Article 8) in the context of climate change and the right to not experience discrimination (Article 14).

Firstly, that any claim under the Convention can only be brought against your own country’s jurisdiction.  Territorial jurisdiction was only established in respect of Portugal where the young people resided, and not against the array of 32 other countries (including the UK) that they had included.  There were a number of reasons for this, as the Court pointed out, including that accepting the applicants’ arguments would entail an unlimited expansion of States’ extraterritorial jurisdiction under the Convention and responsibilities towards people practically anywhere in the world.  This reflects the limits of what the Convention protection system covers, which is primarily and fundamentally based on the principles of territorial jurisdiction and subsidiarity.

Secondly, the applicants the applicants had not pursued any legal avenue in Portugal concerning their complaints. They had therefore failed to exhaust domestic remedies in Portugal, as required by the Convention.   The Court did note that, whilst no case specifically concerning climate change had so far been decided, the domestic case-law demonstrated that environmental litigation was now a reality of the domestic legal system.

Caréme v France (Application no. 7189/21)

This was a complaint by the former mayor of the municipality of Grande-Synthe of insufficient action by France to prevent climate change, acting on his own behalf and in his capacity as mayor.  He had initiated legal proceedings regarding climate-related risks facing the municipality and himself, citing the potential flooding of his residence due to climate change, by 2040.

The Court deemed the complaint inadmissible, applying its reasoning in the Verein KlimaSeniorinnen Schweiz case.  Mr Caréme did not meet the requirements of victim-status for the purposes of the Convention.  The Court found no reason to question the hypothetical nature of the risk relating to climate change affecting the applicant, as stated by the French courts.  The Conseil d’État had found that the applicant lacked a sufficient interest in bringing proceedings solely based on the potential future flooding of his residence, as it was uncertain where he would reside in the coming years, let alone in twenty years or more. Second, the Court noted that the applicant had now moved to Brussels (after becoming a member of the European Parliament) and therefore neither owned nor rented property in the Grande-Synthe. Despite indicating an address in Grande-Synthe in his initial application, he is currently residing in Brussels.

The Court also rejected the applicant’s argument that, as the former mayor of Grande-Synthe, he should have standing.  Under the Convention, public authorities are considered to have no standing. The Court referenced Assanidze v. Georgia [GC], no. 71503/01, § 148, ECHR 2004-II, and Slovenia v. Croatia (dec.) [GC], no. 54155/16, § 61, 18 November 2020 on this point.  Notably, the French courts had acknowledged the municipality’s standing in the legal proceedings.  The difference is that regardless of a regional or local authority’s autonomy vis‑à‑vis the central organs, they are still considered to be “governmental organisations” that have no standing to make an application to the Court under Article 34.