Hot or Cold? The European Court of Human Rights’ recent decisions in climate change and human rights cases

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.