Climate crisis: European Court of Human Rights opens door for governments to face claims over inadequate measures

Polly BotsfordTuesday 7 May 2024

In a judgment in April, the European Court of Human Rights (ECtHR) found that climate frameworks and policies put in place by governments – or the lack of them – can breach human rights. In Verein KlimaSeniorinnen Schweiz & Ors, the Court ruled that the Swiss government had breached the right to private and family life under Article 8 of the European Convention on Human Rights (the ‘Convention’) by failing to take timely and appropriate action in designing and implementing legislation on the climate crisis.

The Court’s judgment potentially opens up a raft of claims against government inaction across countries who are signed up to the Convention. ‘The Court has gone much further than anyone expected and it will set a new precedent in climate litigation’, says Lucy Pert, Jurisprudence Observer Officer of the IBA Litigation Committee and a partner at Hausfeld in London.

A spokesperson for the Swiss Federal Office of Justice, which represents Switzerland at the ECtHR, tells Global Insight that ‘the comprehensive judgment will be analysed with the authorities concerned and the measures which Switzerland has to take for the future will be examined’.

The KlimaSeniorinnen case was first brought in 2016 by an association of older women in Switzerland in the country’s domestic courts. They argued that the Swiss authorities were not doing enough to legislate for limiting greenhouse gas emissions. The action moved to Strasbourg in 2020. Although the ECtHR judgment aligns with a number of recent European climate cases, such as Neubauer et al and Urgenda – where the respective courts found that the state has a legal obligation to take sufficient action to address the climate crisis and meet the objectives laid down in the Paris Agreement – it’s ‘revolutionary’ for the ECtHR, says Annalisa Savaresi, Professor of International Environmental Law at the University of Eastern Finland and Stirling University. ‘In the context of the ECtHR, it has never dealt with a climate change case before’, she explains. The Court clearly stated that climate change was different and that this case ‘raised unprecedented issues’ for the Court itself.

The Court has gone much further than anyone expected and it will set a new precedent in climate litigation

Lucy Pert
Jurisprudence Observer Officer, IBA Litigation Committee

Another important aspect of the case concerns the principle of actio popularis. The Convention doesn’t admit general public interest complaints, as Corina Heri, a postdoctoral researcher in the Climate Rights and Remedies Project within the University of Zurich’s Faculty of Law, explains. ‘You can’t just come to the ECtHR when you don’t like a policy; you have to have suffered yourself.’

The judgment stands out for numerous reasons, including that it sets positive obligations and duties on states. John Balouziyeh is Treasurer of the IBA Human Rights Law Committee and a partner at Curtis, Mallet-Prevost, Colt & Mosle in New York. Speaking in a personal capacity, he says that ‘establishing positive duties to act is rare in international law. Some treaties codify affirmative duties to act or to rescue, but they are the exception. Rather [than] codify positive duties to act, most international treaties establish negative duties that prohibit parties from violating rights.’

However, the Court stated, climate change is different because it’s a ‘common concern of humankind’ and, therefore, it could allow a case to be brought by an association of people ‘in the context of climate change’. As Heri says, ‘normally the Court is really focused on individuals, but it clarified that climate change is a new challenge and we need to come up with different solutions.' The Court is also being quite pragmatic. ‘It is ensuring that future cases are bundled together and so it won’t be swamped by thousands of individual cases’, adds Heri. ‘Where individuals band together they can share resources and expertise in cases that are by nature complex and expensive.'

Critics argue that the case has overstepped the mark. Dissenting Judge Eicke said that the Court has de facto created an entirely ‘new right to effective protection from […] climate change’ and imposed a new ‘primary duty’ to adopt and apply rules and regulations that are ‘capable of mitigating its future effects’.

The ECtHR described its aim as being to respect the role of the executive. ‘Judicial intervention […] cannot replace or provide any substitute for the action which must be taken by the legislative and executive branches of government’, it said. Savaresi says the Court made it clear ‘that it is not taking the place of the executive. But it felt that we cannot have the law staying on the bookshelf as a dead letter, we need to give it life and meaning.’

The ECtHR set out where governments have a wide scope in which to operate, and where it’s narrower. It stated that governments have a narrow margin regarding what states should be aiming for, such as setting out emissions reduction ‘targets and pathways’ and providing evidence on compliance with those targets, but a wide margin of appreciation in assessing how to reach those objectives.

There don’t, however, seem to be limits as to the types of cases and factual matrices in which the judgment could be applied. It could be cited in respect of all manner of climate policies and related issues, perhaps even criminal cases, says Heri. ‘The judgment could also be relied on in potential protest cases where protestors argue that they cannot be criminally charged for acts of civil disobedience because this is a climate emergency’, she says.

In terms of territorial scope, the KlimaSeniorinnen ruling will have a direct impact on the 46 countries in the Council of Europe. It’s not clear what influence it could have beyond that. The US, for example, currently has some of the highest numbers of climate cases. But, says Savaresi, the ruling may not resonate there as ‘the US is rather self-referential when it comes to climate litigation’.

The ECtHR also ruled on two other climate cases alongside KlimaSeniorinnen. The Agostinho v Portugal & Ors case was ruled inadmissible because the extension to 32 other states as well as Portugal was ‘untenable’, and the claimants had not exhausted domestic remedies first. The Carême v France case was also found inadmissible as the claimant was now living in Brussels.

Image credit: Nicola/AdobeStock.com

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