by Antoine Buyse and Kushtrim Istrefi
This morning, the European Court of Human Rights issued its Grand Chamber decisions and judgment in three keenly awaited climate change cases. Two cases were declared inadmissible, but the Swiss grandmothers (Klimaseniorinnen) won their case in two crucial respects: the Court found violations of their right to private life under article 8 ECHR and of access to court under Article 6 ECHR. Although the rejection of most cases and complaints is disappointing, yet was expected, probably much more important is the principled step that the Court has taken to for the first time explicitly acknowledge the fact that climate change can affect human rights. So depending on one's perspective this is a very small step or a huge leap forwards. This is our initial analysis of some key aspects of today's Grand Chamber pronouncements. No doubt the cases will yield food for thought and analysis as well as policy change for many years to come.
The Swiss Klimaseniorinnen
The case of elderly Swiss ladies, Verein Klimaseniorinnen Schweiz and others v Switzerland, was the only one of the three in which the Court issued a judgment and also includes a lot of the argumentation that was applied in the other two cases.
In a nutshell, the Court found violations of the right to private life under Article 8 (16 votes against 1) and of the right to access to Court under Article 6 (unanimously) ECHR. But, importantly, this only applies to the legal person of the association of the Klimaseniorinnen, and not to the four individual elderly women, one of whom tragically passed away over two years ago, who were co-applicants in this case. The Grand Chamber found they had no locus standi by applying a very high threshold for victim status under the Convention. No doubt, this element of the case in itself, and the for many counter-intuitive finding that the association could be regarded as a victim, will be the basis for a lot of academic debate and analysis.
Different from other environmental harm?
Importantly, the Court crucially distinguishes climate change cases from cases of environmental harm across borders which it calls fundamentally different:
"415. The Court’s existing case‑law in environmental matters concerns situations involving specific sources from which environmental harm emanates. Accordingly, those exposed to that particular harm can be localised and identified with a reasonable degree of certainty, and the existence of a causal link between an identifiable source of harm and the actual harmful effects on groups of individuals is generally determinable. Furthermore, the measures taken, or omitted, with a view to reducing the impugned harm emanating from a given source, whether at the regulatory level or in terms of implementation, can also be specifically identified. In short, there is a nexus between a source of harm and those affected by the harm, and the requisite mitigation measures may be identifiable and available to be applied at the source of the harm. "
Two margins of appreciation and positive obligations
What is really notable is that the Court explicitly distinguishes different margins of appreciation for states in relation to climate change. While there is a wide margin of appreciation in terms of how to tackle climate change (choice of policies etc.), the margin is reduced in terms of "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", because of the "nature and gravity of the threat" and the consensus among states to achieve carbon neutrality (para. 543). And in achieving a fair balance in terms of positive obligations under the Convention, "climate protection should carry considerable weight in the weighing-up of any competing considerations" (para. 542). These are really important and principled pronouncements by the Court today.
As second key step is that the Court recognises for the first time that the ECHR entails positive obligations for states in the context of climate change, namely "to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change" (para. 545). More concretely this entails putting "in place the necessary regulations and measures aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, notably the right to private and family life and home under Article 8 of the Convention" (para. 546). And it includes archiving carbon neutrality within the next three decades (para. 548) in order to comply with Article 8!
In the specific case of Switzerland, it failed to comply with Article 8. As the Court concluded (para. 573), there were:
"critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations. Furthermore, the Court has noted that, as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets. By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context."
Obligations under Article 8: similar to Article 2?
Although the Court found no violations under Article 2 in the present case, it must be noted that the standards developed with regards to the right to private life under Article 8 create very similar or even the same State obligations to combat climate change as if they would have been decided under Article 2. The Court mentioned this in a rather explicit way by noting that while it is:
“537: (...) appropriate to examine the applicant association’s complaint from the angle of Article 8 alone… in its case-law analysis below it will have regard to the principles developed also under Article 2, which to a very large extent are similar to those under Article 8 and which, when seen together, provide a useful basis for defining the overall approach to be applied in the climate-change context under both provisions”
Indeed, the positive obligations developed under Article 8 relate to specific measures that State’s must take to reduce greenhouse gas (GHG) emissions. The Court found that the failure of the Swiss authorities’ to put in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations has led to a breach of Article 8 (para 573). It also noted that, “as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets .... By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context.”
In our view, the nature of positive obligations set under Article 8 do not differ from the measures that would be required under Article 2 as both of them ultimately require States to take specific measures to reduce GHG emissions.
It is important that the Court has also explicitly mentioned this connection between Article 8 and Article 2 obligations, not least because of domestic implications of this judgment. For example, in Urgenda, the Dutch courts found a violation of Article 2 ECHR with regards to State’s failure to sufficiently reduce GHG emissions. If the Strasbourg Court had made no connection between Articles 8 and 2, one could wonder whether Dutch courts misapplied the ECHR in the Urgenda case. But today's Grand Chamber judgment shows that it is less relevant on whether we use Article 8 or Article 2 since both create the same State obligations to sufficiently reduce GHG emissions. In this vein, the failure of Strasbourg Court to find a violation on Article 2 does not reduce ECHR obligations to combat climate change. Instead, by focusing on Article 8 rather than Article 2, the Court has opened an alternative, more creative way to address climate change obligations while avoiding the higher and more complex procedural and admissibility burdens that are normally triggered through Article 2.
No access to court
In the Grand Chamber's unanimous finding of a violation of Article 6 ECHR due to a lack of access to court, Strasbourg gives quite an open reprimand to the domestic courts in Switzerland:
"635. The Court is not persuaded by the domestic courts’ findings that there was still some time to prevent global warming from reaching the critical limit (see paragraphs 56‑59 above). This was not based on sufficient examination of the scientific evidence concerning climate change, which was already available at the relevant time, as well as the general acceptance that there is urgency as regards the existing and inevitable future impacts of climate change on various aspects of human rights (see paragraph 436 above; see also paragraph 337 above as regards the respondent Government’s acceptance that there was a climate emergency). Indeed, the existing evidence and the scientific findings on the urgency of addressing the adverse effects of climate change, including the grave risk of their inevitability and their irreversibility, suggest that there was a pressing need to ensure the legal protection of human rights as regards the authorities’ allegedly inadequate action to tackle climate change." [our emphasis]
The Grand Chamber then places this finding in the dual role for domestic courts in this context: both in implementing ECHR rights as well as in being key actors in climate change issues:
"629. the Court considers it essential to emphasise the key role which domestic courts have played and will play in climate-change litigation, a fact reflected in the case‑law adopted to date in certain Council of Europe member States, highlighting the importance of access to justice in this field. 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."
Just like politicians cannot hide behind judges, judges cannot hide behind politicians either, the Court seems to say: it truly is a shared responsibility to address climate change, also from a human rights perspective.
What's next: implementation
So what should Switzerland now do to implement the judgment? Whereas the applicants had asked the Court to set specific emission reduction targets in line with he newest climate science insights, the Court deferred to give any concrete indications, and it is worth citing the Grand Chamber's consideration in full here:
"657. (...) having regard to the complexity and the nature of the issues involved, the Court is unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment. Given the differentiated margin of appreciation accorded to the State in this area, the Court considers that the respondent State, with the assistance of the Committee of Ministers, is better placed than the Court to assess the specific measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State, the adoption of measures aimed at ensuring that the domestic authorities comply with Convention requirements, as clarified in the present judgment."
This in a way was also to be expected. The 'hot potato', so to speak, is put on the plate where it probably belongs, that of the state parties. All the more ironic in this situation as this is one of those European Court judgments that engages necessary action by all states. However, to the disappointing of many, the states will not be guided by specific actions demanded by Strasbourg, but the target (carbon neutrality within three decades) is clear and in line with scientific insights. Not judges but politicians will have to take action, after this strong judicial nudge.
There is thus, even if it may seem a small win to some, great innovation in the Klimaseniorinnen judgment, even if not on all fronts.
The former French mayor
Then the two other cases, which were dismissed in inadmissibility decisions by the Court:
The case of the former French mayor of the coastal town of Grande Synthe, Carême v. France, was declared inadmissible ratione personae. The applicant complained under Articles 2 and 8 ECHR about insufficient mitigation measures being taken against flooding of coastal areas by France. As he both lodged a complaint in his own capacity and on behalf of his (former) municipality, the Court held - in line with existing case-law, that state authorities, including local ones, could not complain under the Convention. As regards his own personal situation, the applicant was no longer a mayor but had in the meantime been elected to the European Parliament and lives in Brussels, so outside France. Building on what it said in the Klimaseniorinnen case on victim status, the Grand Chamber held the following to reject the application:
"83. (...) the Court does not consider that for the purposes of any potentially relevant aspect of Article 8 – private life, family life or home – he can claim to have victim status under Article 34 of the Convention as regards the alleged risks linked to climate change threatening that municipality. This is true irrespective of the status he invoked, namely that of a citizen or former resident of that municipality. The same considerations apply as regards the applicant’s complaint under Article 2 of the Convention.84. Holding otherwise, and given the fact that almost anyone could have a legitimate reason to feel some form of anxiety linked to the risks of the adverse effects of climate change in the future, would make it difficult to delineate the actio popularis protection – not permitted in the Convention system – from situations where there is a pressing need to ensure an applicant’s individual protection from the harm which the effects of climate change may have on the enjoyment of their human rights."
The case of the Portuguese children
As regards the probably most publicised case of the three, the one of Portuguese children complaining against 33 state parties of the ECHR for causing dangers to their life and health, amongst others because of the increase of forest fires as a result of climate change (under Articles 2, 3, 8, and 14), Duarte Agostinho and Others v. Portugal and 32 Others, the Court rejected the application on two different grounds. Relating to the 32 states beyond Portugal about which the children and teenagers complained, the Court stuck to its line on extra-territoriality of jurisdiction and did not go beyond that for the special situation of climate change. It very specifically distinguished these type of climate change-related situations from the more traditional 'local' environmental harm across borders. Reiterating and summarising its current jurisprudence on extraterritorial obligations under the ECHR, the Court held that climate change cases are not of such a special nature to warrant a new extension of extraterritorial jurisdiction:
"192. First, States have ultimate control over public and private activities based on their territories that produce GHG emissions. In this connection, they have undertaken certain international-law commitments, notably those set out in the Paris Agreement, which they have developed in their domestic laws and policy documents as well as in their Nationally Determined Contributions (“NDC”) under the Paris Agreement. Moreover, as set out in Verein KlimaSeniorinnen Schweiz and Others (cited above, §§ 544-554), certain positive obligations arise under the Convention as regards climate change.193. Secondly, albeit complex and multi-layered, there is a certain causal relationship between public and private activities based on a State’s territories that produce GHG emissions and the adverse impact on the rights and well-being of people residing outside its borders and thus outside the remit of that State’s democratic process. Climate change is a global phenomenon, and each State bears its share of responsibility for the global challenges generated by climate change and has a role to play in finding appropriate solutions.194. Thirdly, the problem of climate change is of a truly existential nature for humankind, in a way that sets it apart from other cause-and-effect situations. More fossil fuels being extracted or burnt anywhere in the world, beyond what can be offset by natural carbon sinks (net zero), will inevitably lead to higher GHG concentrations in the atmosphere and therefore to worsening the effects of climate change globally.195. However, the Court finds that these considerations cannot in themselves serve as a basis for creating by way of judicial interpretation a novel ground for extraterritorial jurisdiction or as justification for expanding on the existing ones. It will now proceed to address the other arguments put forward by the applicants as a basis for justifying an extension of extraterritorial jurisdiction."
With this the complaint against the whole group of states is declared inadmissible. The Court explicitly states it is not following the different conception of jurisdiction by the Inter-American Court of Human Rights or the United Nations Child's Rights Committee (para. 212).
And in respect of the then remaining complaint against Portugal only, the Court simply applied standing case-law on non-exhaustion of domestic remedies. Closely connected to this, the Court held that the victim stays is also not clear and decided not to further examine this.
Although the application was a legal gamble worth taking, the outcome of the Court's decision will not be surprising for ECHR experts or Court watchers.
Conclusion, for now ...
What the judgment in the Klimaseniorinnen case will for sure do is open the doors for more climate change cases, both at the European Court of Human Rights, but much faster and much more extensively also in all ECHR state parties. In other words, many Urgenda-like cases are bound to follow at the national level across Europe. For bold domestic courts this could still relate to the right to life under Article 2 ECHR, but more firmly building on todays's judgment, the right to private life under Article 8 seems the most solid way, for now. Let us hope it will help to make a difference.
