Climate change can breach the European Convention on Human Rights: a new impetus for rights-based litigation

April 30, 2024

Three judgments recently delivered together by the European Court of Human Rights (ECtHR) promise to have a profound impact on the shape of climate-change-related actions going forward. In (i) Verein KlimaSeniorinnen Schweiz and Ors v. Switzerland ("KlimaSeniorinnen")¹ (ii) Carême v. France ("Carême");² and (iii) Duarte Agostinho and Others v. Portugal and 32 Others, ("Duarte Agostinho")³ the ECtHR was asked to consider whether the respondent states' alleged failure to take sufficient action in response to climate risk breached the applicants' Convention rights. The ECtHR dismissed the claims in Carême and Duarte Agostinho - which were brought by individuals - on admissibility grounds. But in KlimaSeniorinnen, it granted victim status to the applicant association and considered for the first time the substantive interaction between Convention rights and climate change. It held that Switzerland's failures to mitigate climate change violated the right to a private and family life (Article 8) and the Swiss courts' failure to hear challenges to the government's inaction breached the right to a fair hearing (Article 6). This seminal 16-1 ruling will have significant repercussions for both states and private entities engaged in the energy transition.

KlimaSeniorinnen

The KlimaSeniorinnen case was launched by a non-governmental association engaged in climate mitigation campaigning on behalf of elderly women living in Switzerland, as well as by four individual applicants who were members of the association. The applicants alleged that the effect of global warming was particularly profound on them as older women, breaching their Article 2 rights to life, and to a private and family life under Article 8, which they argued include personal autonomy and the right to age with dignity.

The court held that the individual applicants' alleged particular susceptibility to climate change effects (by way of their belonging to a more affected group) did not meet the "especially high" threshold of individual victim status, which requires that the conduct in question personally and directly affects them. This would require the applicants to establish that:

• they were subject to a high intensity of exposure to the adverse effects of climate change, i.e. the level and severity of (the risk of) adverse consequences of governmental action or inaction affecting the applicant must be significant; and
• there is a pressing need to ensure the applicant's individual protection, due to the absence or inadequacy of any reasonable measures to reduce the relevant harm.⁴

Notwithstanding the evidence produced demonstrating the particular effects of climate change on older women, including regarding the health impacts of heatwaves, the court held that it was not apparent that the individual applicants satisfied the above test.

However, it accepted that the association met the lower applicable test of showing it was lawfully constituted and had the purpose of defending relevant human rights, specifically those of its members, the general public and future generations to be protected from the threat of climate change. In addition, given the Swiss courts had refused standing to the individual applicants (and had not considered the position of the applicant association), the grant of standing to the association was in the overall interests of justice.

In its introductory remarks on the merits, the ECtHR acknowledged the novel challenge posed by climate change globally and that it would be "neither adequate nor appropriate" to directly transpose its existing environmental case law to the context of climate change - rather, it would have to tailor its approach to the specific particularities of climate change.⁵ This approach followed through to its consideration of questions such as causation, as to which the court noted the complexity of climate cases arose in part because "they are not concerned with single-source local environmental issues but with a more complex global problem".⁶

In particular, the court recognised the problem of attribution of responsibility regarding the adverse effects arising from climate change claimed by individuals or groups against a particular state, given that "multiple actors contribute to the aggregate amounts and effects of GHG emissions".⁷ It held that as a matter of fact there was sufficient evidence that climate change existed and posed a serious current and future threat to the enjoyment of human rights, that states are aware of it and capable of taking measures to address it, and that the relevant risks will be lower if action is taken urgently. Switzerland has a positive obligation to protect Convention rights and had breached this in respect of Article 8 through a "critical lacunae in [its] process of putting in place the relevant domestic regulatory framework, including a failure … to quantify, through a carbon budget or otherwise, national GHG emissions limitations".⁸ It rejected the claim based on the right to life under Article 2 because it considered it "more questionable" whether the adverse effects of climate change had life-threatening consequences.

It will now be incumbent on Switzerland pursuant to Article 46 of the Convention to take appropriate measures to remedy the breach and its effects. The applicants suggested Switzerland would need to take "all suitable measures" to allow it to achieve a level of annual emissions compatible with its target of attaining a minimum reduction of 40% in GHG emissions by 2030 and carbon neutrality by 2050. However, their position was that the ECtHR should not specify what measures were needed but leave this to Switzerland, subject to supervision of the Council of Ministers as is the usual practice. The court agreed that, given the complexity and nature of the issues involved, this was not a case where it was appropriate to depart from this general approach, but the state's margin of appreciation should be respected.⁹

Jurisdictional requirements remain robust: Carême and Duarte Agostinho

In the two other judgments handed down by the court, the claims were found to be inadmissible. The Carême applicant was a former mayor of a French municipality, whose victim status was refused on the basis that: (i) he no longer had a sufficient connection to the affected area, having left France; and (ii) in any event, governmental authorities such as the municipality he purported to represent do not have standing under the Convention.

The Duarte Agostinho applicants had asked the court to exercise jurisdiction over not only Portugal, but also some 32 other state parties to the ECHR. It refused to do so in respect of the 32 "foreign" states (perhaps unsurprisingly given the limited extraterritorial application of the Convention) and also declined jurisdiction over the applicants' home state of Portugal because they had not exhausted domestic remedies, as required to bring a claim before the ECtHR. As such, notwithstanding the court's comments that its existing case law may not be apposite for claims relating to climate issues, it will clearly continue to robustly apply its standing criteria, thus also avoiding a flood of admissible claims.

Impact on climate change litigation going forward?

The court's judgment in KlimaSeniorinnen is its first affirmation of the potential for climate change to breach Convention rights, making clear the court will consider and act upon persuasive evidence before it of the impacts of global warming. A number of climate-change-related cases are still pending before the court, and we anticipate future applicants will continue to push the boundaries of Convention jurisprudence and draw upon advancing evidence in an effort to demonstrate breaches of additional rights. ECtHR judgments are often persuasive before other international courts and tribunals, so we expect this finding will significantly contribute to the development of international jurisprudence around climate change.

The judgment will almost certainly have ramifications in related litigation in domestic courts, given that Convention states have incorporated it into domestic law, such that claims can be brought directly based on this (e.g. in the UK under the Human Rights Act 1998). Numerous environmental and climate-related cases currently in the courts are based or draw upon human rights, and we have seen claimants successfully invoke the ECHR to obtain powerful remedies. This includes in claims against private parties, such as in Milieudefensie et al. v. Shell, which drew upon ECHR Articles 2 and 8 as well as the Dutch Civil Code, resulting in the Hague District Court's ordering Shell to reduce its CO2 emissions by 45% by 2030. Similarly, a number of claims brought against UK-based parent companies relate to human and individual rights violations allegedly committed by foreign subsidiaries (such as those in Okpabi v. Shell¹⁰ and the ongoing claim in Municipio de Mariana v. BHP¹¹). The English courts' willingness to accept jurisdiction over such claims, in combination with the judgment in KlimaSeniorinnen, may well spur further group actions based on alleged contributions to the adverse effects of climate change.

Finally, the ECtHR's willingness to engage with scientific evidence of the inadequacy of Switzerland's response (notwithstanding the margin of appreciation generally afforded to Convention states), and its finding of a breach of Article 6 because of the refusal of the Swiss courts to hear the merits of the claim, are notable. The court observed that, to the extent the action was aimed at vindicating Convention rights in the face of the allegedly inadequate and insufficient action by the authorities, it could not be seen as an "actio popularis" or as "involving a political issue which the courts should not engage with". We may well see domestic courts consequently more emboldened to rule upon the merits of climate-related actions against states, who may in turn be compelled to speed up their national plans regarding climate change mitigation.

1. Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, Application No. 53600/20, Judgment, 9 April 2024. ↩
2. Carême v. France, Application No. 7189/21, Decision, 9 April 2024. ↩
3. Duarte Agostinho and Others v. Portugal and 32 Others, Application No. 39371/20, 9 April 2024. ↩
4. KlimaSeniorinnen, para. 487.↩
5. Ibid., para. 422. ↩
6. Ibid., para. 424. ↩
7. Ibid., para. 425. ↩
8. Ibid., para. 573. ↩
9. Ibid., paras. 652-657.↩
10. See decision of the UK Supreme Court, [2021] UKSC 3.↩
11. See decision of the Court of Appeal, [2022] EWCA Civ 951.↩