Hot Or Cold? The European Court Of Human Rights' Recent Decisions In Climate Change And Human Rights Cases

KlimaSeniorinnen v Switzerland

In this landmark judgment, the ECtHR ruled that the Swiss government's inadequate efforts and inaction in combatting climate change had breached the human rights of the claimants, thus establishing a link in European law between climate change and human rights obligations for the very first time.

The applicant and applicants

The case centred around 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, alleging that the Swiss authorities had failed to mitigate climate change. The applicants had (unsuccessfully) exhausted their routes in the domestic courts in Switzerland (unlike the applicants in Aghostinho (see below)).

The applicants argued that there was no doubt that climate change-induced heatwaves had led to increased ill health in elderly women, who were a particularly vulnerable group. The Swiss government were aware of the situation and future risks but set no appropriate targets to manage the situation. The individual applicants argued that they had "victim" status (a pre-requisite for obtaining relief from the ECtHR) on the basis that they had each been personally impacted by climate change-induced heatwaves, and had claims for specific injuries they had suffered, as opposed to the general degradation of the environment. Similarly, the association claimed victim status by virtue of its position as an association composed of individuals who had been personally impacted by climate change. The government's climate inaction, it was argued, culminated in a breach of Article 2 (right to life) and Article 8 (right to private life) of the Convention.

The ECtHR's assessment

Due to the ECtHR's strict procedural rules on standing, particularly in relation to individual applicants, the claims of the four individual women were ruled inadmissible on the basis that each individual had not personally suffered, nor were imminently likely to suffer, sufficient harm as a result of the Swiss government's action or inaction, and therefore did not have standing as "victims" under the Convention. By contrast, the association was found to have fulfilled the relevant requirements for standing on the basis that climate change is a common concern of humankind.

The ECtHR found that the Swiss government's inadequate efforts to combat climate change, including a failure to quantify (through a carbon budget or otherwise) national greenhouse gas emissions limitations had infringed human rights. In relation to causation, the ECtHR dismissed the traditional "but for" test as inapplicable to climate change cases, finding that a relevant relationship of causation between the ill health of the senior women and climate change existed, supported by scientific evidence (which it seems they carefully considered).

The Article 8 right under the Convention was deemed by the ECtHR to encompass "a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life". The ECtHR did not examine the case from the angle of Article 2 given its finding on Article 8 but observed that the relevant principles developed under Article 2 were, to a very large extent, similar to those under Article 8.

What is the significance of the decision?

This enshrinement of a right to a healthy environment within the framework of the Convention represents a novel precedent in the field of climate change and human rights litigation. It may give rise to an alternative route to redress beyond the traditional tortious routes when seeking to influence future action on climate change.

Whilst this decision is not directly enforceable in the UK, UK courts will be required to take account of it when determining any similar claims under the Convention. This judgment will undoubtedly have a ripple effect on businesses, with the ECtHR indicating that the obligation of States to recognise and protect human rights through climate action does not just lie with governments, but that "[d]ecarbonisation of the economies and ways of life can only be achieved through a comprehensive and profound transformation in various sectors. Such "green transitions" necessarily require a very complex and wide‑ranging set of coordinated actions, policies and investments involving both the public and the private sectors".

Dissenting judgment

Of note, in his dissenting judgment, Judge Eicke (the UK judge) opined that the majority had gone beyond what was permissible in unnecessarily expanding the concept of standing. He further cautioned that the majority decision may in fact be counter-productive in combatting climate change, in part due to the risk that governments will now be tied up in litigation about whatever regulations they have adopted or how those regulations have been applied in practice.

Duarte Agostinho and others v Portugal and 32 others

The applicants

The case was brought by a group of six young people, all residents of Portugal, who complained about the existing, and serious future, impacts of climate change attributable to the actions of their home country Portugal and thirty-two other States. They alleged breaches of Articles 2, 3, 8 and 14 of the Convention.

Before lodging their application with the ECtHR, the applicants did not bring their situation to the attention of any of the authorities in any of the respondent States; nor did they attempt to use any legal remedies in any of those States. Instead, the applicants lodged their application directly with the ECtHR, elaborating on the alleged failures and deficiencies in climate protection by the respondent States and the adverse effects on people caused by those shortcomings. They requested the ECtHR to rule, at first instance, on all these matters.

The respondent Governments

The respondent Governments contended that the applicants had sought to bypass the essential conditions for the admissibility of applications before the ECtHR laid down in the Convention. In particular, they had failed to invoke, let alone exhaust, domestic remedies in any of the respondent States. The respondents also argued that the applicants were seeking to persuade the ECtHR to depart radically and impermissibly from its established approach to jurisdiction.

The Court's Assessment

Jurisdiction

The ECtHR agreed with the Government of Portugal that the issue of jurisdiction should be separated from the question of actual responsibility for the impugned violations of the Convention. With regard to the other respondent States, the applicants had not argued, nor would there be any basis to find, that their territorial jurisdiction could be established in respect of them. The ECtHR examined extraterritorial jurisdiction and found there could be no suggestion that any of the respondent States exercised in any manner effective control of an area outside their national territory so as to bring the applicants within their jurisdiction.

Whilst the ECtHR accepted that climate change was a global phenomenon which needed to "be addressed at the global level by the community of States", it noted that "each State has its own share of responsibilities to take measures to tackle climate change and that the taking of those measures is not determined by any specific action (or omission) of any other State".

The ECtHR held that extending jurisdiction extraterritorially would be equivalent 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 ECtHR concluded that territorial jurisdiction was established in respect of Portugal whereas no jurisdiction was established as regards the other respondent States.

Exhaustion of domestic remedies

It was uncontested that the applicants did not pursue any legal avenue in Portugal (or any other respondent State) concerning their complaints. The applicants argued that the mere existence of a broad constitutional provision could not provide for an effective and sufficiently certain remedy. They also challenged the effectiveness of the use of any possible domestic remedies. The ECtHR rejected these arguments having regard to the remedies available in the Portuguese legal system. The ECtHR concluded that there were no special reasons for exempting the applicants from the requirement to exhaust domestic remedies in accordance with the applicable rules and the available procedures under domestic law. The applicants' complaint against Portugal (and the other respondent States) was therefore ruled inadmissible for non-exhaustion of domestic remedies.

Victim status

The ECtHR noted that there was a significant lack of clarity as regarding the applicants' individual situations, which made it difficult to examine whether they satisfied the victim-status criteria set out in KlimaSeniorinnen. The ECtHR considered this lack of clarity could be explained by the applicants' failure to comply with the obligation to exhaust domestic remedies, a condition of admissibility closely linked to the question of victim status.

Carême v France

This case originated in an application brought by a French national, Daniel Carême against the Republic of France. At the time of applying to the ECtHR, the applicant was a Member of the European Parliament. However, before entering the European Parliament in 2019 he had been the mayor of Grande-Synthe, a municipality near Dunkirk that is particularly exposed to the risks of climate change, including flooding.

Exhaustion of domestic remedies

Unlike the applicants in Agostinho, Mr Carême took steps to exhaust domestic remedies before applying to the ECtHR. In 2018, he made requests – both in his personal capacity and in his capacity as mayor of Grande-Synthe – to the French authorities to take certain steps to prevent climate change, including taking all necessary measures to curb greenhouse gas emissions. After receiving no formal response to this request from the authorities, he sought judicial review by the Conseil d'État of the implicit rejection decisions constituted by the authorities' failure to reply to his requests. The Conseil d'État heard the complaint, and after reviewing the steps taken by France in order to combat climate change, ordered the French authorities to take further steps to ensure that they would meet their climate reduction targets.

Application to the ECtHR

The applicant then applied to the ECtHR, alleging that the steps already taken by France to reduce greenhouse gas emissions, and the further steps that had been ordered by the Conseil d'État as a result of his judicial review, were insufficient to ensure that France would meet its greenhouse gas-reduction targets. He argued that this failure entailed a violation of his Article 2 and Article 8 rights under the Convention. The case was heard by the same panel as the cases in KlimaSeniorinnen and Agostinho.

The ECtHR's decision

The ECtHR found that the applicant did not have standing to bring his claim. He had initially brought his claim on the basis that he was a resident of Grande-Synthe, an area at high risk of flooding as a result of the effects of climate change. However, by the time of his application to the ECtHR, he had relocated to Brussels as a result of entering the European Parliament, and no longer had any relevant links to Grande-Synthe. Accordingly, he could not claim victim status pursuant to Article 34 of the Convention as regards the alleged risks linked to climate change threatening the municipality.

The Court also rejected an argument that he had standing to bring his claim in his capacity as the former mayor of the municipality. In light of its decision on standing, the ECtHR did not make any decision in respect of Mr Carême's arguments on Articles 2 and 8 of the Convention.

Concluding remarks

Many activists, litigants and members of the legal profession (including Judge Eicke) were surprised by the ECtHR's majority decision in KlimaSeniorinnen. Although not directly binding in the UK, the UK courts are under an obligation to take the decision into account any similar claims under the Convention. Climate campaigners will see that in and of itself as a significant victory.

In R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, Lord Bingham famously held that the UK should "keep pace" with Strasbourg. If they are to keep up with Strasbourg's understanding of human rights, the UK Courts may have to adapt their approach to climate change cases. We can now expect to see claimants in the UK relying on this judgment and stress-testing the new Government's approach to climate change issues.