- Protection against Climate Change is now a Human Right – The Impact of ECtHR’s Swiss Climate ruling - September 6, 2024
- The Cost of Living in a Politically Fragmented Europe - June 19, 2024
- NATO, Russia, and the shifting dynamics of European Defense - May 13, 2024
Human rights are open-ended. They are not a fixed or limited set of rights. Instead, they are constantly evolving to enable authorities to protect citizens from unforeseen challenges. Climate change is one such transnational challenge. Its impacts are far-reaching, not only harming the environment but also threatening human health and the lives of millions of people worldwide. Extreme temperatures, rising sea levels, interrupted food chains and disrupted ecosystems have exacerbated existing inequalities, pushing vulnerable populations to the brink of poverty and displacement. Thus, humans face climate change as a threat to their existence.
Legal frameworks have been increasingly recognising and incorporating climate change considerations into human rights protections. On April 9, 2024, the European Court of Human Rights (ECtHR) gave a comprehensive decision on a climate litigation case. This is the first time that an international court linked the protection of human rights with the measures to mitigate the greenhouse effect. The court handed down judgements in three cases (Verein Klima Seniorinnen Schweiz and Ors vs Switzerland; Carême vs France; and Duarte Agostinho and Others vs Portugal and 32 Others) relating to States’ commitment towards climate change under the European Convention on Human Rights. While the claims in the Carême and Duarte cases were regarded as objectionable, in the KlimaSeniorinnen case, the court found the government of Switzerland to be guilty of violating the rights established under Articles 2 and 8 of the convention, thus setting a precedent for climate protection all around the world.
The Cases
The cases, despite being filed in different timelines, regions, and circumstances and possessing distinct verdicts, share common elements. All three cases are centred around the governments’ ineffectiveness in protecting its citizens against climate change, specifically questioning their inefficiency in implementing emission reduction targets. The cases challenged the States based on their human rights: Article 2, Article 6 (Right to a fair and public hearing), Article 8 and Article 14 (Protection against Discrimination). They all drew inspiration from the Urgenda decision, a milestone in climate-rights based litigation. Besides, KlimaSeniorinnen, Carême and Duarte were heard by the same composition of the Grand Chamber, demonstrating consistency across the three varied judgements.
Verein KlimaSeniorinnen Schweiz and Ors vs Switzerland: The historic judgement was given in the case brought up jointly by Verein KlimaSeniorinnen Schweiz (Swiss Senior Women for Climate Protection), a group of more than 2,500 Swiss women aged 64 or over, supported by Greenpeace and four individual Swiss nationals. Their primary argument was that due to their age, they were at risk of health impacts of excessive heat waves, invading their right to life (Article 2) and right to private and family life (Article 8). Further, they alleged that the Swiss authorities were aware of the risks yet failed to protect its citizens, endangering the lives of the 2,500 members. According to the plaintiffs, Switzerland was unsuccessful in mitigating greenhouse gas emissions and complying with the 2015 Paris Agreement targets. The Court found the Swiss authorities’ inability to establish and regulate a domestic framework for tackling the issue. In compliance with it, the Court determined that Switzerland and its courts’ inaction breached Article 8 and further on Article 6.
Carême vs France: The case was brought up by Damien Carême against the French government. In his appeal to the ECtHR, Carême, a resident and mayor of Grande-Synthe, contended that being exposed to climate-related risks such as coastal erosion, floods, and coastal flooding infringed upon his right to private and family life and his right to life. Nevertheless, during the hearing, the applicant acknowledged no longer residing in France. Consequently, the ECtHR determined that since the applicant was no longer living in Grande-Synthe, nor did he own or rent property there, he could not claim victim status under the Convention (para. 84). In its assessment, the ECtHR cited the established general principles of victim status in KlimaSeniorinnen.
Duarte Agostinho and Others vs Portugal and 32 Others: The case was filed by six Portuguese youths against 33 countries. They asserted that the respondents were insufficient in protecting their citizens against the harmful effects of climate change. The complaint, which has been ongoing since 2020, was declared inadmissible on two grounds. Firstly, the ECtHR reduced the territorial jurisdiction to only Portugal and dismissed the complaint against the other 32 states. Secondly, the court noted that the applicants failed to exhaust domestic remedies before the Portuguese courts.
In Agreement with the European Climate Law
The ECtHR’s Swiss ruling is in agreement with the European Climate Law. This regulation seeks to establish and uphold a framework for achieving climate neutrality in the European Union by 2050 and reducing net emissions of greenhouse gases by 55% by 2030. The ruling upholds the law in the following ways:-
- Setting a level of expectation from the States in addressing climate change challenges: The Court in KlimaSeniorinnen required the State to reconsider amending its national laws and take accountability for the effective protection of its citizens. It gives a clear message that the ECHR member states are responsible for protecting Article 8 of the ECHR. Additionally, it will create awareness among policymakers to know what level of protection they should guarantee their citizens.
- Linking human rights with climate change impacts: The decision has expanded the scope of further judgements. It provides an outline for the courts to assess whether the state authorities have been able to exhibit measures in breach of human rights due to climate change. The jurisprudence includes the states’ ability to demonstrate a plan of action with a specified timeline to achieve Net Zero and carbon budgets. This involves setting intermediate targets to be attained within the given timeframe, providing evidence of compliance with these goals, using the evidence to update targets and pathways, and consistently implementing actions as required.
- Encouraging more transparent and accountable environmental practices in the corporate sector: While KlimaSeniorinnen is bound to the state governments and the international commitments of their implementations, the ruling will follow the reduction in carbon emissions by corporations and business houses indirectly. Member states may enforce stricter domestic climate policies in the company’s jurisdiction to comply with the regulations. Moreover, a surge in climate litigation may be seen, with the claimants focusing on the private sector and major multinational corporations with substantial greenhouse gas emissions.
- Potential new climate protection regulations within the EU: By setting a legal precedent for the 46 member countries of the Council of Europe, it has opened doors for new climate protection legislation in Europe.
A New Precedent
While only KlimaSeniorinnen has emerged successful out of the three high-profile cases, it has paved the way for rights-based litigation all over the world. At the same time, it is questioning its political legitimacy and calling it intrusive, leading to many member states such as the UK considering withdrawing from the ECHR. On the other hand, the Swiss Parliament has rejected ECtHR’s verdict.
Nevertheless, it has set a new precedent for cases not only within the European Union but also globally. Internally, the domestic courts will have to keep in view the ruling. In cases such as Duarte, they may emerge victorious against Portugal because of this precedent. Globally, forums such as the International Court of Justice, International Tribunal for the Law of the Sea, South Korea Constitutional Court etcetera which have seen an overwhelming number of cases in the past years could take inspiration and draw similar conclusions.
The KlimaSeniorinnen victory has become a source of hope and inspiration for climate activism movements across the globe. As the threat of climate change looms, the precedent established by ECtHR will likely be referenced in future climate-related legal proceedings, contributing to the effort to combat climate change whilst protecting human rights.
- Is rights-based climate litigation the way to approach the crisis?
- Do the similar pending cases now have an increased probability of winning?
- Does the ECtHR verdict hamper the political sovereignty of its member countries?
Suggested readings
“Reparation for Climate Change at the ECtHR.” Verfassungsblog. 10 May 2024
“Why Climate Change and Human Rights are Connected”. Friedrich-Ebert-Stiftung. 31 October 2023
