The European Court of Human Rights (the "Court") yesterday delivered three much anticipated decisions on whether states' failure to act against climate change breached human rights law.
The Court dismissed two of the cases on procedural grounds, but largely upheld the claims in the third case. It decided that Switzerland's climate strategy was critically flawed and failed to protect the applicant's rights under the European Convention on Human Rights ("the Convention").
The decisions come on the back of a wave of climate litigation in domestic courts, but are the first time Europe's regional human rights court has ruled on the issue. We discuss all three cases and the judgments' likely consequences for governments and businesses.
Background
The first claim was Duarte Agostinho and Others v. Portugal and 32 Others. The applicants were six Portuguese nationals aged between 8 and 21 when the case was filed. They brought their claim against all 27 Member States of the European Union, as well as Norway, Russia, Switzerland, Turkey, Ukraine and the United Kingdom. The applicants complained of the serious present and future effects of climate change, specifically heatwaves and wildfires, as impacting their lives, well-being, mental health and their homes. They argued that the respondent states' failure to take measures to reduce emissions in line with the 1.5 °C target under the Paris Agreement amounted to a breach of their Convention rights. Specifically, these are the right to life under Article 2, the prohibition of inhuman and degrading treatment under Article 3, the right to respect for private and family life and home under Article 8, and the prohibition of discrimination under Article 14. The case was unique in that the applicants applied directly to the Court, without first seeking recourse through the domestic courts as required under Article 35 of the Convention. This was because the applicants argued that no adequate remedy existed in a domestic court for a claim against all 33 respondent states.
The second claim was Carême v. France, a case brought by the former mayor of Grande-Synthe, a low-lying municipality on the north coast of France that is vulnerable to future flooding as a result of climate change. In 2019, Mr Carême had filed judicial review proceedings before the French administrative court (Conseil d'Etat) in his capacity as mayor of Grande-Synthe and in his personal capacity, on the basis that the French government had failed to take adequate measures to curb emissions and adapt to the risks of climate change. The Conseil d'Etat found the claim to be admissible insofar as it was brought on behalf of the municipality, but denied standing to Mr Carême in his personal capacity. The court reached that decision on the basis that it was uncertain whether Mr Carême would still be a resident of Grande-Synthe in 2030-2040 when flooding was alleged to become likely. Mr Carême subsequently applied to the Court, claiming that the Conseil d'Etat had erred in rejecting his personal action, and that France's alleged failings violated his right to life (Article 2) and his right to respect for his private and family life and home (Article 8) under the Convention.
The third claim was Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. The applicants were, on the one hand, an association with around 2,000 members, all of whom were senior women, and, on the other hand, four women over the age of 80 who suffered from health conditions that were exacerbated during heatwaves. The applicants argued that their health was endangered by the increase in heatwaves caused by climate change. They claimed that Switzerland had violated its obligations under Articles 2 (right to life) and Article 8 (right to respect for private and family life and home) of the Convention by failing to set climate targets that were in line with the Paris Agreement and best available science, which in turn adversely affected the applicants' lives, living conditions and health. The applicants also claimed that they had been denied access to a court and an effective domestic remedy under Articles 6 and 13 of the Convention. They alleged that the Swiss courts (including ultimately the Federal Supreme Court) had acted arbitrarily in deciding that the applicants lacked standing to bring their claims because they were not sufficiently and directly affected by the Swiss Government's alleged failings.
Decisions
The claims in Duarte v Portugal and 32 Others and Carême v France were held to be inadmissible or outside the Court's jurisdiction. By contrast, the claims in Verein KlimaSeniorinnen were largely upheld.
In Duarte, the Court decided that the claim against Portugal was inadmissible because the applicants had failed to exhaust the available remedies through the domestic courts. Regarding the 32 other respondent states, the Court held that it lacked jurisdiction because the applicants were residents of Portugal and there were no special circumstances that would allow the Court to establish extra-territorial jurisdiction in this case. The applicants' novel strategy of bringing a claim against multiple states directly before the Court, without first litigating in their respective national courts, therefore failed.
In Carême, the Court held that the applicant had failed to establish that he was personally and directly affected by France's alleged failings, and therefore that he lacked standing as a "victim" under Article 34 of the Convention. Central to this decision was the finding that Mr Carême had moved to Brussels after being elected as a Member of the European Parliament and no longer owned or rented a property in Grande-Synthe.
In Verein KlimaSeniorinnen, the Court found that the four individual claimants lacked standing as victims, whereas the association did meet that hurdle. In respect of the association's claims on the merits, the Court held by an overwhelming majority of 16 votes to one that Article 8 (right to respect for private and family life and home) had been violated, and unanimously that Article 6 (access to a court) had been breached.
Significantly, the Court found that Article 8 provided a "right for individuals to enjoy effective protection by the State authorities from serious adverse effects on their life, health, well-being and quality of life arising from the harmful effects and risks caused by climate change". This right in turn imposed an obligation on the State to adopt "measures capable of mitigating the existing and potentially irreversible, future effects of climate change". The Court interpreted states' obligations under Article 8 in light of their commitments under the UN Framework Convention on Climate Change and the Paris Agreement as well as the "cogent scientific evidence provided, in particular, by the [the UN Intergovernmental Panel on Climate Change]". On this basis, the Court held that "effective respect for the rights protected by Article 8 of the Convention requires that each Contracting State undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades."
Applying these obligations, the Court found critical gaps in Switzerland's implementation of a domestic regulatory framework to reduce emissions, including a failure to quantify maximum emission limits and apply corresponding carbon budgets. The Court also found that Switzerland had failed to meet its past emissions targets.
The Court further held there had been a violation of the association's right to access a court under Article 6. It found that the Swiss courts had rejected the applicant's claim without providing convincing reasons as to why they would not consider the merits of the claim. More generally, the judgment highlights the important role of domestic courts in providing access to justice for claimants in climate change litigation.
The Swiss Government is now obliged to adopt domestic measures that put a stop to its violation of Article 8. Given the complexity of the issue, however, the Court declined to give specific directions and left it open to Switzerland to decide what those measures should be.
Comment
The Court's decision in Verein KlimaSeniorinnen marks a significant milestone for human rights law and climate litigation: it establishes for the first time that state parties to the Convention have a positive obligation to take measures to reduce their emissions, and to do so consistently with the Paris Agreement and with a view to achieving net neutrality in the next three decades.
The judgment establishes an authoritative interpretation of Convention rights in relation to climate change and creates an important precedent for future cases, both before the European Court of Human Rights itself, as well as in the domestic courts of the Convention's 46 state parties.
Multiple other climate-related cases are pending before the Court, and will be decided, where relevant, in light of the decision in Verein KlimaSeniorinnen (e.g. Engels and Others v. Germany; The Norwegian Grandparents’ Climate Campaign and Others v. Norway).
In domestic courts, the precedential value of judgments issued by the European Court of Human Rights depends on the relevant national legal system. In the UK, the Human Rights Act 1998 (the "Act") incorporates the Convention into domestic law and provides an avenue for claimants to enforce Convention rights through the UK courts. Section 2 of the Act requires UK courts to "take account" of the decisions of the European Court of Human Rights when applying the Act. The judgment in Verein KlimaSeniorinnen may therefore give rise to future judicial review of government climate policy in the UK courts.
While the Convention applies directly only to state parties, the decision is also relevant to businesses. Companies are increasingly under pressure to act consistently with human rights law, in line with the UN Guiding Principles on Business and Human Rights. As an important regional human rights court has now established that a rapid transition to carbon neutrality is required to protect a key human right, corporates should ensure that their own emission reduction plans are credible and effective. In any event, companies should prepare for stricter regulation as states seek to meet their own obligations under the Convention and the Paris Agreement.
Finally, the Court's decision comes at a meaningful time, as three other international and regional courts are currently considering the obligations of states in the face of climate change: the International Court of Justice, the Inter-American Court on Human Rights, and the International Tribunal on the Law of the Seas have all been asked to deliver advisory opinions on the issue. It remains to be seen whether those courts will further develop international law in line with the milestone decision handed down by the European Court.