On 9 April 2024, the European Court of Human Rights issued three decisions on the climate change obligations of states parties to the European Convention on Human Rights. Two of the complaints (Agostinhono v. Portugal and Carême v. France) were deemed inadmissible due to a failure to exhaust domestic remedies and a lack of victim standing, respectively, while a third case, Verein KlimaSeniorinnen Schweiz v. Switzerland (App No 53600/20), resulted in a judgment in favor of the claimants. Read together, the cases demonstrate that environmental litigation is now a reality in the domestic legal systems of Europe and in the European Court of Human Rights (the "ECtHR"). Verein KlimaSeniorinnen Schweiz v. Switzerland, which is unique as an actio popularis case initiated by private persons on behalf of the general public, may pave a way for similar litigation in Europe seeking to establish positive obligations of states parties to the European Convention on Human Rights as it relates to climate change.
In Agostinhono v. Portugal and 32 Others (App No 39371/20), the Grand Chamber of the ECtHR found that the climate change claim was inadmissible due to the failure of the six young Portuguese claimants to exhaust domestic remedies for environmental matters in Portugal, including under its constitution. Having regard to the comprehensive system of remedies in the national legal system, the ECtHR noted that Portuguese case law demonstrated that environmental litigation was now a reality of the domestic legal system and that there was no reason for exempting the applicants from the requirement to exhaust available remedies under domestic law.
In Carême v. France (App No 7189/21), the Grand Chamber of the ECtHR decided that the climate change complaint by the former resident and mayor of the Grande Synthe municipality in France was inadmissible due to a lack of standing. The Court found that the applicant did not have status as a victim within the meaning of Article 34 of the European Convention on Human Rights. Though the applicant complained in his capacity as mayor of the Grande Synthe municipality in 2018, the Court found that the applicant no longer held victim status under Article 34 of the Convention as he no longer lives in Grande Synthe (or anywhere in France) and no longer has any sufficiently relevant nexus with Grande Synthe, irrespective of whether he is a French citizen or former resident.
In contrast, a decision was issued in favor of the applicants in Verein KlimaSeniorinnen Schweiz v. Switzerland (App No 53600/20). The ECtHR held that there had been a violation of Article 8 of the European Convention on Human Rights with respect to the right to respect for private and family life and of Article 6.1 of the Convention with respect to access to the Court. The Court held that Article 8 of the Convention encompasses a right to effective protection by the state authorities from the adverse effects of climate change on lives, health, well-being and quality of life. The Court found that states have a positive obligation to undertake measures for substantially and progressively reducing their greenhouse gas emission levels with a view to reaching net neutrality within the next three decades. To avoid a disproportionate burden on future generations, states are obligated to take immediate action towards greenhouse gas reduction in national legislation. The Court found that the Swiss authorities failed to discharge this obligation through the development and implementation of relevant legislation.
Verein KlimaSeniorinnen Schweiz is a landmark case in its finding of a positive obligation of states to act. Only a handful of treaties codify affirmative duties to act and generally, they do so only when human life is at stake. The United Nations Convention on the Law of the Sea, for example, requires ship masters to render assistance and rescue persons in distress. The Geneva Conventions of 1949 require states parties to both respect and ensure that other states respect the Conventions in all circumstances of armed conflict. The International Covenant on Civil and Political Rights requires that states not only refrain from violating basic human rights, but also that they ensure the protection of these rights from violations by other actors. The finding of a positive obligation to act in Verein KlimaSeniorinnen Schweiz is therefore indicative of the weight that the European Court of Human Rights gave to climate change and its potential to seriously and adversely impact life, health, well-being and quality of life.
The three climate change cases brought before the ECtHR are
indicative of an uptick in environmental litigation brought against
not only states, but also corporate actors. The UN Environmental
Programme recently reported that climate litigation against
corporations, municipalities and states has more than doubled in
the past five years. The cases likely pave the way for further
litigation in the ECtHR, particularly with European Green Deal
legislation on the horizon.
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