The Grand Chamber of the European Court of Human Rights (ECtHR) has found that Article 8 of the European Convention on Human Rights (the Convention) encompasses a right for individuals to effective protection by state authorities from serious adverse effects of climate change on their life, health, well-being and quality of life.
Further, Switzerland had failed to comply with its duties as the Swiss authorities had not acted in time or in an appropriate way to devise, develop and implement relevant legislation and measures to mitigate the effects of climate change.
Admissibility of complaints
The applicants in the complaints against Switzerland constituted both an association of over 2,000 older Swiss women established under Swiss law to promote climate protection on behalf of its members, and four individual women from that group.
The four individuals were found not to fulfil the victim status criteria under Article 34 of the Convention, the Court setting a high bar in this regard. In the context of climate change, it was necessary for individuals to show that they were personally and directly affected by governmental action or inaction, which depended on a high intensity of exposure and a pressing need to ensure individual protection. The Court said the threshold for fulfilling this criteria was "especially high" given that the Convention does not admit general public interest complaints. The Court made it clear this was a real concern in this case given everyone (to some degree) is directly affected, or at a real risk of being directly affected, by climate change.
The association did however have the standing to bring the complaint, being lawfully established in the jurisdiction; able to demonstrate its purpose to defend the human rights of its members; and regarded as genuinely qualified and representative of its members. The Court found (unusually for the ECtHR) that associations (subject to meeting certain criteria) could, in the context of climate change cases specifically, have standing to bring a claim.
Violation of Convention rights
The ECtHR proceeded on the basis that "there are sufficiently reliable indications that anthropogenic climate change exists [and] that it poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention" (paragraph 436).
It was alleged that the Swiss government had failed to fulfil its duties under the Convention, in particular in relation to the Article 2 right to life and the Article 8 right to respect for private and family life, including their home. The association complained of health problems made worse during heatwaves and significantly affecting their lives, living conditions and well-being.
In making its decision, the 16:1 majority judgment found that Article 8 encompasses a right for individuals to effective protection from 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 (paragraphs 519 and 544). While no finding was made in relation to Article 2, it was noted that the principles developed under it were, to a very large extent, similar to those developed under Article 8.
Switzerland had failed to comply with its duties under the Convention, there being critical gaps in the process of putting in place the relevant domestic regulatory framework. Switzerland had also failed to meet its past GHG emission reduction targets.
The applicants also claimed that they were denied the right to a fair and public hearing under Article 6 of the Convention (access to the courts), alleging that the domestic courts had given arbitrary decisions affecting their civil rights, including their specific vulnerability in relation to heatwaves. The Court held, on a unanimous basis, that the applicant association’s legal action had been rejected on the basis of inadequate and insufficient considerations and that there had therefore been a violation of Article 6. The Court made it clear that national courts should engage with the issue of climate change, stating that actions seeking to vindicate rights in light of allegedly inadequate and insufficient action with respect to climate change "cannot automatically be seen as an actio popularis [general public interest complaint] or as involving a political issue which the courts should not engage with".
Noting states' "margin of appreciation" (i.e. scope to decide how to meet the obligations under the Convention), the Court left Switzerland, under the supervision of the Committee of Ministers, to adopt measures to ensure compliance with the requirements of the Convention.
Commentary
Grand Chamber rulings in the ECtHR are final and cannot be appealed: Switzerland is now required to take suitable measures to comply with the Convention. While not binding on national courts, the decision will be influential. The judgment recognises a new primary duty 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” (paragraph 545). The judgment highlights that this duty would require "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” (paragraph 548).
According to DAC Beachcroft partner, Simon Konsta:
"This is a milestone decision, with the ECtHR recognising that individuals are owed effective state protection from the serious adverse effects of climate change. However, how this decision will translate into positive action remains unclear. The sole dissenting opinion, provided by Judge Tim Eicke KC, the UK's judge to the ECtHR, highlights the risk of the judgment being an unwelcome distraction from ongoing legislative and negotiation efforts, as states try to avoid further lengthy litigation around regulations and measures already adopted and how they have been applied in practice."
Annabel Walker, Associate, DAC Beachcroft, further observed that:
"The findings under Article 6 emphasise the role of domestic courts in these matters. To date, human rights arguments pursued in climate litigation in England and Wales have been unsuccessful. While decisions of the ECtHR are not binding on English and Welsh courts, they are required to take them into account. By explicitly recognising the link between climate change and breaches of rights protected by the Convention, the decision could present a turning point in the strength of rights based arguments brought in the right circumstances in England and Wales."
Alistair Robertson, public law and judicial review partner at DAC Beachcroft, added:
"National governments will now be considering this judgment with real care, as it undoubtedly puts wind in the sails of environmental groups looking to challenge domestic policy making. It remains to be seen how domestic courts will respond; but it seems very likely that this will add impetus to those seeking to make these claims."
Duarte Agostinho and Carême applications
The above judgment was one of three handed down by the Grand Chamber of the ECtHR. Two other actions, Duarte Agostinho and Others v Portugal and 32 Others and Carême v France were both ruled to be inadmissible.
The Duarte Agostinho complaint was brought by six young Portuguese nationals against their home nation and 32 other states, alleging responsibility for a range of harm caused by current and expected climate change impacts. The applicants alleged breaches of various Convention rights: Articles 2 (right to life), 3 (prohibition of inhuman and degrading treatment), 8 (right to respect for private and family life) and 14 (prohibition of discrimination). The application was deemed inadmissible on two grounds. In respect of the complaint against Portugal, the applicants had not exhausted all domestic remedies. On the complaint against the 32 other nation states, there were no grounds in the Convention for the extension of extraterritorial jurisdiction in the manner requested by the applicants. Therefore, the complaint against other respondent states was inadmissible.
The Carême application was made by a former resident of the municipality of Grande-Synthe and in his capacity as mayor. The municipality is particularly exposed to the risks associated with climate change, including flooding. The complaint alleged that France had taken inadequate and insufficient steps to prevent climate change leading to a violation of his Convention rights under Articles 2 and 8. The application was deemed inadmissible on the basis that the applicant had no relevant links with Grande-Synthe. The applicant is not currently a resident of France, meaning he could not claim to have victim status under Article 34 of the Convention.
Climate change litigation around the world
This ECtHR decision is part of the wider climate activism taking place in courts across the globe and follows the recent UK High Court hearing of three challenges to the UK Government's Carbon Budget Delivery Plan, itself the result of a partially-successful 2022 judicial review of the Net Zero Strategy in relation to government obligations under the Climate Change Act.
We continue to track key climate change litigation as part of our interactive map on our Informed Insurance microsite, and will provide further commentary on key decisions as they are handed down.
