European Court Of Human Rights finds first violation of Convention rights based on climate change

The European Court of Human Rights (“ECtHR“) has delivered three highly anticipated judgments on the application of the European Convention on Human Rights (“Convention“) in the climate change context. Whilst two of the cases were ruled inadmissible on procedural grounds, in the third case it has for the first time found a violation of Convention rights in the climate change context and outlined positive obligations on all States, including the UK, in relation to measures to mitigate climate change. This decision marks a significant development in the approach of the ECtHR and how the Convention can be used in climate change litigation going forwards.

Key points

• Article 8 includes a right for individuals to effective protection by 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 gives rise to positive obligations on States to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change.
• The nature and gravity of the threat posed by climate change, and the general consensus concerning the overarching goal of greenhouse gas (“GHG“) reduction targets, justifies a reduced margin of appreciation, or discretion, for States in relation to their commitment to combating climate change and its adverse effects.
• Although climate change is a global phenomenon for which all States must share responsibility, this does not justify an extension of extraterritorial jurisdiction so as to hold States responsible for alleged impacts on individuals outside their territory.

Background

The Grand Chamber considered three cases which raised unprecedented issues: Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (App. 53600/20); Carême v. France (App. 7189/21) and Duarte Agostinho and Others v. Portugal and 32 Others (App. 39371/20).

The particular nature of the problems arising from climate change in terms of Convention issues raised had not to date been addressed in the ECtHR’s case‑law. In a significant development of the case-law on both procedural rules and Article 8 (respect for private and family life), the case against Switzerland was successful, with the other two applications being ruled inadmissible.

Judgments

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland

This was a complaint brought by four individual Swiss women and an association whose aim was to promote and implement climate protection on behalf of its members, most of whom were over the age of 70. There were numerous interveners in the case, including other Governments, NGOs and United Nations bodies, highlighting the importance and far-reaching implications of this case.

The complaint concerned the alleged failure of the Swiss authorities to mitigate climate change and the effects of global warming. Members of the association described the impact heatwaves were having on their health and daily lives. In particular, the applicants submitted that older adults, women and persons with chronic diseases were at the highest risk of temperature‑related morbidity and mortality. Their arguments included that in Switzerland more deaths than average occurred during hot summers, and that the Swiss authorities themselves recognised that they had missed their own 2020 climate target. The claim relied on various Convention rights, but most relevantly Article 8 and Article 6 (right to a fair hearing, and specifically in this complaint the right of access to a court).

Standing

The ECtHR has strict procedural rules on who can bring a complaint. The four individual women were found not to have the necessary “victim” status, as required under Article 34 of the Convention, because on the evidence they were not said to have been exposed to the adverse effects of climate change, or at risk of being exposed at any relevant point in the future, with the necessary degree of intensity giving rise to a pressing need to ensure their individual protection, this being a high threshold. The individuals’ claims were therefore ruled inadmissible.

Although generally speaking associations are not granted victim status, it was noted that there were special considerations relating to climate change as a common concern of humankind that justified granting standing to associations, subject to certain conditions laid out in the judgment. The association in this case did fulfil the relevant requirements for standing, and therefore the ECtHR went on to consider the substance of the complaint, focusing on Article 8.

General comments on climate change context

The ECtHR noted the international context, including the Paris Agreement commitments and subsequent developments including COP28. Although acknowledging that climate change is one of the most pressing issues of our times, the judgment made it clear that it could only address the issues arising from climate change within the limits of its competence, and that judicial intervention could not replace or be a substitute for actions that must be taken by the legislative and executive branches of government. Within these limits to its role, however, the ECtHR considered that it could not ignore what it described as “the widely acknowledged inadequacy of past State action to combat climate change globally“. It emphasised the complexity of the issues and context, not least that there is no single source of harm when it comes to GHG emissions, and that often the source of such emissions are not activities that could be labelled as dangerous but rather everyday aspects of our lives. Therefore, although there should clearly be significant deference to domestic policy-makers in line with a State’s margin of appreciation, that could not be unlimited given the urgent threat posed by climate change. The ECtHR found force in the argument put forward by the UN Special Rapporteurs that the question is no longer whether, but how, human rights courts should address the impacts of environmental harms on the enjoyment of human rights.

In light of the recent evolution of scientific knowledge, social and political attitudes and legal standards, and noting the need for the Convention to be interpreted in light of such developments, the ECtHR took it as a matter of fact that there are sufficiently reliable indications that anthropogenic climate change exists, that it poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention, that States are capable of taking measures to effectively address it, that the relevant risks are projected to be lower if the rise in temperature is limited to 1.5°C above pre-industrial levels and if action is taken urgently, and that current global mitigation efforts are not sufficient to meet this target. Whilst accepting that climate change was a global issue that should be addressed by the global community, this did not mean that each State should not bear its own share of responsibility, which it could not evade by pointing to the responsibility of other States.

Against this background, the judgment recognised a distinction between the scope of the margin of appreciation afforded to States as regards, on the one hand, the State’s commitment to the necessity of combating climate change and its adverse effects, and the setting of the requisite aims and objectives in this respect, and, on the other hand, the choice of means designed to achieve those objectives. As regards the former, the nature and gravity of the threat and the general consensus as to the overarching goal of overall GHG reduction targets call for a reduced margin of appreciation for States. As regards the latter, namely their choice of means, including operational choices and policies adopted to meet internationally anchored targets and commitments in the light of priorities and resources, States should be accorded a wide margin of appreciation.

Article 8

Turning to the specific Convention rights, Article 8 is capable of being engaged by climate change issues because of adverse effects not only on individuals’ health but on their well‑being and quality of life, and not only because of actual adverse effects but also sufficiently severe risks of such effects. The judgment addresses in detail the content of States’ positive obligations, explaining that the primary duty is to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change. This requires that each State undertake measures for the substantial and progressive reduction of their GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades.

In order for the measures to be effective, it is incumbent on public authorities to act in good time, in an appropriate and consistent manner. Immediate action needs to be taken and adequate intermediate reduction goals must be set for the period leading to net neutrality. Such measures should be incorporated into a binding regulatory framework at the national level, followed by adequate implementation. The judgment gave detailed guidance as to the factors that would be relevant to assessing whether or not a State has met these obligations.

Applying this approach, the ECtHR found a failure by Switzerland to fulfil its positive obligation derived from Article 8 to devise a regulatory framework setting the requisite objectives and goals. Such an effective regulatory framework concerning climate change would require quantifying, through a carbon budget or otherwise, national GHG emissions limitations. A failure to provide this quantification, along with Switzerland’s failure to meet its past GHG emission targets, were critical reasons for the failure to comply with the Article 8 positive obligations.

Article 6

The ECtHR went on to also find a violation of the Article 6 right to access to a court in respect of the association because of the way the domestic proceedings in Switzerland had been conducted. In doing so, the ECtHR considered it “essential to emphasise the key role which domestic courts have played and will play in climate-change litigation… Furthermore, given the principles of shared responsibility and subsidiarity, it falls primarily to national authorities, including the courts, to ensure that Convention obligations are observed.”

The opposing view

Interestingly there was a dissenting opinion from Judge Eicke, the UK judge. Whilst agreeing with the urgent need to address climate change, he considered that the majority had gone beyond what was permissible in unnecessarily expanding the concept of standing. Further, he disagreed with what he characterised as creating a new right and the imposition of new primary duties. Notably, he cautioned that the majority decision may in fact be counter-productive, partly due to the significant risk that Governments will now be tied up in litigation about whatever regulations and measures they have adopted or how those regulations and measures have been applied in practice.

Duarte Agostinho and Others v. Portugal and 32 Others

This case was brought by six Portuguese nationals alleging a breach of their Convention rights due to the existing and serious future impacts of climate change. As young people, they argued that there was a greater impact of climate change on them than previous generations. The applicants claimed that such breaches were imputable not only to Portugal but also to 32 other respondent States.

The ECtHR declared the complaint inadmissible with respect to the 32 other respondent States as there were no grounds for extraterritorial jurisdiction of the Convention. This was despite the ECtHR consideration of the applicants’ arguments for extending extraterritorial jurisdiction, including on the basis of (i) the gravity and magnitude of the impact of climate change on the applicants’ rights; (ii) the causal relationship between activities within a State that produce GHG emissions and the adverse impact on the rights and well-being of people outside its borders; (iii) the limited efficacy of bringing the case against only Portugal and the inability of applicants to hold other States otherwise accountable for the impact of climate change on their rights; and (iv) the argument that the group of respondent States had control over the applicants’ Convention interests (if not over the applicants themselves). The judgment noted that although all States must take responsibility for climate change, this must be differentiated from the issue of jurisdiction. The ECtHR held that extending jurisdiction extraterritorially would be tantamount to requiring States to satisfy substantive obligations under the Convention despite not having control over the applicants or the territory where the applicants were suffering the alleged impacts, which would create an untenable level of uncertainty for States and would constitute a radical departure from established principles. The applicant must be resident in the State against which the complaint is made.

The ECtHR also found the complaint to be inadmissible with respect to Portugal as the applicants had not exhausted domestic legal remedies prior to their application to the ECtHR.

Carême v France

A resident and former mayor of the municipality of Grande-Synthe alleged that France had taken insufficient steps to prevent climate change, constituting a violation of his Convention rights. Carême had filed a claim in France’s highest administrative court, the Conseil d’État, which ruled in favour of the municipality and ordered France to take additional measures to meet its GHG emissions targets but rejected Carême’s individual case on the basis that he did not have a personal interest in bringing a claim. The fact that his current residence was located in an area likely to be subject to flooding by 2040 was said to be too uncertain and therefore only a hypothetical risk. Carême appealed to the ECtHR, arguing that as a resident of a coastal municipality he was personally exposed to coastal erosion and flooding, the effects of which could be fatal. France argued that Carême had failed to demonstrate the existence of a serious or specific risk to his health and his property and had only pointed to general future risks threatening Grande-Synthe.

The ECtHR declared the application inadmissible, on the ground that Carême did not have victim status within the meaning of Article 34 because he no longer personally lived in Grande-Synthe. Noting that an applicant must show they are personally and directly affected by the impugned failures of the State to have victim status, the ECtHR found no reason to question the Conseil d’État’s ruling that the effects of climate change on Carême were only “hypothetical” at this stage, and so victim status was not made out.

Comment

The Swiss decision has already been heralded as a significant victory for climate campaigners. Many may be surprised at how far the ECtHR was prepared to go, not only in terms of prescribing positive obligations on States, but also the strength of the language it used in relation to what it described as previous inadequate action to combat the climate crisis.

In the UK, where the courts have repeatedly emphasised their limited constitutional role and the need for deference to the Government in relation to climate change policy, it will be interesting to see how this judgment is first used by claimants in climate change litigation and then dealt with by domestic courts who are under an obligation to take it into account. As recognised by the dissenting judge, there is now a significant risk of further litigation testing the UK Government’s approach.

For more information, please contact Andrew Cannon, Partner, Andrew Lidbetter, Partner, Nusrat Zar, Partner, Jasveer Randhawa, Professional Support Consultant, Louise Barber, Senior Associate, or your usual Herbert Smith Freehills contact