Today, the European Court of Human Rights ruled on an unprecedented trio of cases that claimed European states have taken insufficient action to combat climate change. [emphasis, links added]
The outcomes of the claims were mixed. But the judgments of the Strasbourg Court are likely to prove exceedingly contentious.
The three cases involved claims against Switzerland, France, and Portugal. They were heard by the Grand Chamber of the Strasbourg Court – essentially Europe’s top human rights court – with judges from 17 European states.
In the Swiss claim, individuals and an association of older Swiss women claimed that they were at particular risk of illness because of climate-induced heat waves.
The claim from France highlighted the risk of future flooding. The Portuguese claim argued that wildfires, beginning in 2017, impacted the claimants’ lives, homes, and well-being. This final case was the most bold.
It was brought not only against Portugal (where the claimants lived) but also against more than 30 other Council of Europe states, including the UK.
In the event, only the Swiss case was successful, in part. The other two claims were declared inadmissible.
Neither side of the argument is likely to be completely satisfied by this outcome, but it has been reported that environmental activists are ‘celebrating’ the first-ever climate case victory in Strasbourg.
In the Swiss case, it was argued that there had been multiple breaches of the European Convention on Human Rights. Amongst other things, the claimants cited breaches of the right to life (Article 2) and the right to respect for private and family life (Article 8).
The Court ruled that the Swiss association had what is known as ‘standing’ to bring a claim.
While the Court did not find a violation of the right to life, it did find that Switzerland had failed to comply with its duties under the ECHR concerning climate change and therefore found a breach of the right to respect for private and family life.
It determined that Article 8 of the Convention must be seen as encompassing a right for individuals to be protected by state authorities from the serious adverse effects of climate change.
The Court concluded that there had been critical gaps in the process of putting in place the relevant domestic regulatory framework in Switzerland, including a failure by the Swiss authorities to quantify national greenhouse gas emissions limits.
Switzerland had also failed to meet emission reduction targets and had not acted in time to devise, develop, and implement relevant climate-related legislation and measures.
In the course of its judgment, the Court noted that the case raised unprecedented issues and stated that ‘climate change is one of the most pressing issues of our times.’
The Court also claimed that while judicial intervention could not replace or provide a substitute for action taken by parliaments and governments:
‘democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law. The remit of domestic courts and the Court is therefore complementary to those democratic processes.’
Statements such as this, to justify action, are likely to provoke concern amongst those who are alarmed about what they describe as ‘judicial activism’ and the Strasbourg Court’s habit of expanding the nature of the rights covered by the ECHR beyond that anticipated by its original authors.
It is notable that the Strasbourg Court’s UK judge, Tim Eicke, disagreed with the majority.
In a partially dissenting opinion, Judge Eicke was overtly critical of the judgment of the majority, arguing that they had tried to run before they could walk and that they had gone beyond what it was ‘legitimate’ and ‘permissible’ for the Court to do.
He also worried that:
‘In having taken the approach and come to the conclusion they have, the majority are, in effect, giving (false) hope that litigation and the courts can provide “the answer” without there being, in effect, any prospect of litigation (especially before this Court) accelerating the taking of the necessary measures towards the fight against anthropogenic climate change.’
The precise practical effect of the case is currently far from clear. The Strasbourg Court’s judgment is essentially declaratory.
It concluded that because of the complexity and the nature of the issues involved, it was unable to be detailed or prescriptive when it comes to Switzerland applying any measures to comply with the judgment.
This question will eventually be resolved on a political basis, by the Swiss government in discussion with the Committee of Ministers of the Council of Europe.
Nonetheless, the judgment may well prove extremely significant in that it could fuel future climate litigation from groups or associations found to have relevant standing.
Image via Wikimedia Commons of the Human Rights building in Strasbourg
Read rest at Spectator UK
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