European Court Of Human Rights Delivers Ground-Breaking Climate Change Decision

Background

The application against Switzerland was brsought by four individuals and an association of 2,000 women, KlimaSeniorinnen, all of whom are concerned about the impacts which climate change is having on their health, wellbeing, and quality of life. In particular, the applicants, whose average age was 73, cited evidence on the disproportionately adverse effects which climate change has on older women.

In November 2016, the applicants submitted a request to the Swiss Federal Department of the Environment, Transport, Energy and Communications (DETEC) with the aim of compelling the Swiss authorities to take all necessary measures required by the Swiss Constitution and the Convention to prevent the increase of global temperatures. DETEC rejected the request based on a lack of standing, indicating that the applicants were pursuing general public interests which did not provide them with victim status under the Convention.

Appeals to both the Federal Administrative Court and the Federal Supreme Court were dismissed, on the basis that it had not been shown that the applicants' rights had been sufficiently and directly affected by climate change in a way that was different to the rest of the population.

The applicants brought their application to the ECtHR, claiming that the Swiss Authorities had breached Article 8 of the Convention by failing to ensure respect for their private and family life, including their home. They also submitted that their rights under Article 6 had been breached because the Swiss courts had not responded to their requests for effective mitigating measures to be implemented against climate change.

The ECtHR decision

Standing in environmental claims

In terms of Article 34, an applicant must show they are a victim of the alleged breach of the Convention by demonstrating the harm which they claim to have suffered. The ECtHR had previously held that in environmental cases it is not enough for an applicant to complain of general damage to the environment. Victims would need to show:

1. They have been subject to a high intensity of exposure to the adverse effects of climate change, i.e., the level and severity of the adverse consequences of government action or inaction affecting the applicant must be significant; and
2. There must be a "pressing need" to ensure the applicant's individual protection, due to the "absence or inadequacy of any reasonable measures to reduce harm".

While the ECtHR found that the four individual applicants did not meet the requirements for victim status, it held that KlimaSeniorinnen met the criteria applicable to the standing of associations:

1. It was lawfully established in the jurisdiction concerned or had standing to act there;
2. Its "dedicated purpose in accordance with its statutory objectives" was to pursue "the defence of the human rights of its members or other affected individuals" within the concerned jurisdiction; and
3. It was regarded as "genuinely qualified and representative" to act on behalf of its members.

Article 8

One of the most striking elements of this ECtHR decision is that it interpreted Article 8 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 Court noted that, in environmental cases alleging Article 8 violations, the starting point is for applicants to show there was an "actual interference" with the enjoyment of their private or family life, or their home. There must also be a certain level of "severity" attached to the interference. Identifying if an interference is serious enough will depend on the facts of each case, and the Court noted there would not be an arguable Article 8 claim "if the detriment complained of is negligible in comparison to the environmental hazards inherent in life in every modern city".

The Court stated that under Article 8, Member States must adopt and "effectively apply in practice" such regulations and other measures that are "capable of mitigating the existing and potentially irreversible, future effects of climate change". However, States have a wide margin of appreciation in this area as to the choice of means designed to achieve those objectives. The Court's assessment will consider whether the State had due regard to the need to:

1. Adopt "general measures specifying a target timeline for carbon neutrality and the overall remaining carbon budget for the same time frame" aligned with "national and/or global climate-change mitigation commitments";
2. Set intermediate greenhouse gas (GHG) emissions reduction targets and "pathways" that are capable of "meeting the overall national GHG reduction goals within the relevant time frames";
3. Provide evidence which shows the State's compliance with these GHG reduction targets;
4. Keep the GHG reduction updated through due diligence, and "based on the best available evidence"; and
5. Act "in good time" and in an "appropriate and consistent manner" when it devises and implements the relevant legislation and measures.

The Court found that the Swiss authorities had failed to comply with their positive obligations under Article 8 through gaps in Switzerland's relevant domestic regulatory framework, including a failure to quantify national GHG limitations through a carbon budget or other mechanism. The Court noted that "given the pressing urgency of climate change and the current absence of a satisfactory regulatory framework", the State's "mere legislative commitment to adopt the concrete measures 'in good time'," was insufficient to meet its Article 8 duty.

Article 6

KlimaSeniorinnen also succeeded in their challenge under Article 6. The ECtHR ruled that the rejection of the association's legal action in the Swiss courts without the merits of the case being properly assessed, had amounted to a limitation of the applicants' right to have access to a court. The Swiss courts had failed to provide convincing reasons as to why they did not sufficiently examine the merits of the applications, or the compelling scientific evidence concerning the urgent need to act against the further impacts of climate change.

Notably, the ECtHR also highlighted the important role which climate-related litigation in domestic courts play in offering access to justice in this area, stating that it fell "primarily to national authorities, including the courts, to ensure that Convention obligations are observed".

Implications for Convention Member States

Following the ruling, the Swiss authorities will now be supervised by the Committee of Ministers to adopt measures aimed at ensuring compliance with its Convention obligations. The Swiss State was also ordered to pay €80,000 to KlimaSeniorinnen towards costs.

Other Convention Member States will similarly need to consider the adequacy of their climate change policies, practices and regulation, in light of the Court's interpretation of Article 8.

With thanks to Aimee Hardham for her assistance in preparing this briefing.