12 April 2024
On April 9, 2024, the European Court of Human Rights delivered three landmark judgements in cases relating to environmental protection and human rights.
Out of the three cases, two were determined to be inadmissible by the Grand Chamber on procedural grounds – lack of standing for the case against France,[1] and lack of extra-territorial jurisdiction and non-exhaustion of domestic remedies for the case against Portugal and 32 other States.[2] Significantly, however, the case by Verein KlimaSeniorinnen Schweiz and Others against Switzerland was successful.
This case concerned a complaint by an association of elderly Swiss women – and four individual women – who claimed that global warming’s consequences are negatively impacting their living conditions and health, as elderly women are disproportionally affected and more vulnerable to heat and climate change. They argued that this was due to the Swiss authorities not taking sufficient action to mitigate the effects of climate change.
Owing to the pressing and significant nature of the claim, it was given priority status, and the lower court of the ECtHR relinquished jurisdiction to the Grand Chamber. The applicant’s arguments relied on three main issues; the first was that the inadequacy of Switzerland’s climate policies violated the women’s right to life, as well as constituting an interference with their right to private and family life (Art. 2 and 8 ECHR). The second was that the Swiss Federal Supreme Court’s rejection of the case on arbitrary grounds violated the right to a fair trial (Art. 6 ECHR). Finally, the Swiss authorities and courts had not dealt with the content of their complaints, violating the right to an effective remedy (Art. 13 ECHR).
Despite acknowledging the damaging effects of global warming, the Swiss government argued that the claimants did not have standing due to the absence of a sufficient link between their suffering and the omissions of the state. They also argued that the association could not rely on the right to life or to respect for private and family life.[3]
The Court, in a 17-1 panel, using as a basis for its judgement the wide ratification of the 1998 Aarhus Convention on inter alia access to justice in environmental cases, determined that the applicant association had the necessary standing to bring the case against Switzerland.[4] However, the additional, individual claimants, were deemed to have insufficient standing in the case.
As regards Article 2, the Court dismissed the argument relating to a violation of the claimants’ right to life, as it found the life-threatening element was more questionable. It took the view that it was not necessary to examine it in view of its finding that Article 8 applied to the applicant association’s complaint but decided to have regard to the principles developed under Article 2 in its analysis of Article 8.[5]
The Court found that “there were some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emission limitations”, and a failure to put in place appropriate measures to achieve them; by failing to act the authorities had exceeded their margin of appreciation and thus violated Article 8 of the ECHR.[6]
Notably, the Court accepted the applicants’ argument that any discussion of Switzerland’s responsibility for the effects of climate change needs to consider not only the emissions produced in the country’s territory but also those ‘embedded’, or generated through the import of goods that account for more than half of the country emissions.[7]
The Court then outlined the necessary steps a state must take to comply with Article 8 of the ECHR. Remarkably, the Court said that States must undertake “measures for the substantial and progressive reduction” of GHG emissions with a view to reaching net neutrality in the next three decades. To avoid placing a disproportionate burden on future generations, States must take immediate action and set adequate intermediate reduction goals within a binding regulatory framework, followed by adequate implementation. The Court then went on to offer an assessment framework with a list of requirements that states must comply with to remain within their margin of appreciation and meet the net neutrality target.[8] Along with the mitigation measures, the Court emphasised the need to implement adaptation measures to alleviate the “most severe or imminent consequences of climate change.” This reflects the recognition that some consequences of climate change are inevitable, and thus, States must adapt to these to comply with Article 8 (right to private and family life).[9]
The Court also found Switzerland to have violated Article 6 of the ECHR (Right to a fair trial). The judgement indicated that the Swiss Court’s findings were “not based on sufficient examination of the scientific evidence concerning climate change”.[10] This is significant as it places an important burden on courts to ensure an effective and full examination of the – often technical – scientific evidence.
Wider significance:
This judgement has already been coined as a landmark judgement.[11] The Court has reaffirmed the wide standing afforded to environmental protection associations and shown that the rights contained in the ECHR can be used in environmental litigation. Secondly, all European Council states are now under the same obligation as Switzerland to ensure their climate policies comply with the ECHR.
This case will significantly impact states’ human rights obligations in the context of climate change worldwide. A number of cases at the ECtHR had been adjourned awaiting these judgements; given the similarities with the facts of the Swiss case, its judgement will likely be decisive. Notably the Court places the onus on all competent domestic authorities, be it legislative, executive or judiciary, to ensure respect with the relevant requirements. This is interesting as it creates an expectation that these requirements put forward in the assessment framework of national climate change policies will be used by future courts to inform their judgements. Beyond the ECtHR, national courts worldwide and other international courts (Inter-American Court of Human Rights; ICJ) are facing similar cases, placing increasing strain on existing human rights frameworks to adapt to environmental issues. It remains to be seen how far the traditional rights frameworks can accommodate environmental concerns, and the ECtHR will likely remain at the forefront of these questions.
[1] Carême v France
[2] Duarte Agostinho and Others v Portugal and 31 Other States
[3] Paras 340-342
[4] Para 525.
[5] Para 536-537
[6] Para. 573, 574
[7] Para 279.
[8] Para.550
[9] Para.552
[10] Para 635
[11] https://www.theguardian.com/environment/2024/apr/09/human-rights-violated-inaction-climate-echr-rules-landmark-case