Lucas Sánchez
Head of International Litigation
Last week a historic moment in climate and human rights litigation occurred when the European Court of Human Rights (ECtHR) addressed the issue of climate change and its effects on rights protected under the European Convention on Human Rights (ECHR). On the 9th April 2024 the Strasbourg Court, delivered three widely-anticipated judgments. This post serves as the first of two addressing the implications of these cases in relation to human rights and climate litigation. While the first reviewed the outcome of these cases, the second will be released shortly and focus on the issues related to access to justice in the context of climate litigation.
While only one of the three cases seen was deemed admissible, the ECtHR’s decision in that case will have far-reaching consequences. In this case, Verein KlimaSeniorinnen Schweiz and others v. Switzerland, the ECtHR determined that States’ human rights obligations include the control and mitigation of their greenhouse gas (GHG) emissions.
The case involves a complaint by a Swiss climate association and its members, a group of older women concerned about the consequences of global warming on their living conditions and health. They claimed that the actions taken by the Swiss government to mitigate climate change are insufficient, and that this constitutes a violation of their rights under the ECHR.
The ECtHR delivered a long and sophisticated judgment, in which it found that the respect for private and family life under Article 8 includes an obligation to mitigate climate change. Although an eye-catching finding, it has been argued that the Court is holding States to a rather minimal standard in terms of assessing their actions to reduce GHG emissions: in effect, the ECtHR did not evaluate the results of the actions taken by Switzerland, but only the existence of an adequate regulatory framework for reducing GHG emissions.
Nevertheless, the significance of the Judgment can hardly be overstated. The Court found that Switzerland had failed to meet these standards, as there were “critical lacunae” in the process of putting in place such a regulatory framework, including a failure “to quantify, through a carbon budget or otherwise, national GHG emissions limitations” (para. 573). These very relevant findings will have considerable impact well beyond the case at hand
These judgments are the starting point of a new era of climate and human rights litigation.
Moreover, though the other two cases were deemed inadmissible, they reflect a rising trend in the use of strategic litigation. The case of Carême v. France was submitted by the (then) Mayor of the French town of Grande-Synthe, arguing that France has taken insufficient steps to prevent climate change, leading to an increased risk of flooding in the municipality. He claimed that this constitutes a violation of his right to life (Article 2) and his right to respect for private and family life (Article 8).
The ECtHR nevertheless considered this case inadmissible, mainly because the applicant no longer resides in the municipality allegedly at risk of flooding, nor in France. Therefore, the Court said, he no longer had the status of a victim, due to an insufficient link between the French actions to mitigate climate change (or the lack thereof) and his human rights.
Finally, the Duarte Agostinho and others v. Portugal and 32 others case, arguably the most ambitious of the three, was submitted by several young Portuguese nationals against 33 States, claiming that the GHG emissions from these states contribute, among other things, to heat waves and forest fires, which affect their health and living conditions. However, this complaint was also declared inadmissible by the ECtHR.
On the one hand, the Court found that the applicants were only subject to the jurisdiction of Portugal and not of the other 32 States, thus preventing it from considering the complaint against these other States. On the other hand, with respect to Portugal the Court found that the applicants failed to exhaust domestic remedies, arguing that they should have submitted this complaint before national courts first, instead of going directly to Strasbourg.
Still, all three complaints are good examples of strategic litigation, as the applicants were seeking to tackle wider structural issues (such as the emission of GHGs) through individual cases. In addition, they successfully situated the issue of climate change under the scope of the ECHR, triggering positive obligations for states under this instrument. For this reason, the latter judgment has been described as a “landmark decision”, “historic and unprecedented” or even as “a milestone for human rights protection”.
Indeed, the impact of this judgment will be felt in the years to come, not only in further climate-change related cases before the ECtHR or in the advisory opinions related to this topic that are currently pending before the International Court of Justice, the International Tribunal for the Law of the Sea and the Inter-American Court of Human Rights, but very importantly also in domestic climate litigation.
On the basis of the ECtHR’s reasoning in this case, individuals and NGOs will be able to submit complaints before national courts claiming that States are failing to comply with their human rights obligations by failing to mitigate their GHG emissions. Domestic courts will be able to use the powerful framework of domestic and international human rights law to specify concrete remedial measures to improve regulatory frameworks and climate policies.
In fact, now that they’ve been given this precedent by the ECtHR, it’s likely that domestic courts will be able to go even further and be more effective in enforcing climate-related human rights claims: while the ECtHR generally limits itself to issuing declaratory judgments that do not specify any concrete measures besides the payment of compensation, domestic courts will transform these rights into specific, binding demands with which governments must comply. In sum, it is to be expected that these judgments of the ECtHR are only the starting point of a new era of climate and human rights litigation.
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