The Grand Chamber of the European Court of Human Rights (ECtHR) has handed down its decision in three high-profile climate litigation cases relating to violations of the European Convention on Human Rights (the ECHR) (i) Duarte Agostinho and Others v Portugal1 (Duarte); (ii) Carême v France2 (Carême); and (iii) KlimaSeniorinnen v Switzerland3 (Klima). <8strong>
We summarise below the ECtHR's decision in each case and consider the potential impact on future climate-related claims in England.
Duarte
Six children and young adults argued that Portugal and 32 other signatory states had breached the ECHR by failing to cut greenhouse gas emissions in line with their obligations under the Paris Agreement. The applicants alleged that the respondent states collectively had contributed to global warming and, in turn, heatwaves and wildfires that have affected their lives, well-being, mental health and the amenities of their home. They did not pursue any claim in Portugal, but sought to bring their claim in the ECtHR directly.
What were the claims?
Carême
MrCarême was mayor of Grande-Synthe, a town in Northern France. Acting on his own behalf and in his capacity as mayor, he asked the French Government to curb domestic greenhouse gas emissions, to adopt all necessary legislative and regulatory initiatives, and to implement immediate measures to adapt to climate change in France. The French Government failed to respond and Mr Carême appealed to the Conseil d'Etat. In various decisions, the Conseil found against Mr Carême on the basis that he personally did not have an interest in the case. Mr Carême therefore appealed to the ECtHR.
Klima
The applicants (an association of women and four individual applicants) argued that Switzerland's emissions, caused by imported goods and through its own domestic emissions, contributed to overall temperature increases and that more ambitious greenhouse gas emissions targets were required to meet Switzerland's international obligations under the Paris Agreement. Their requests were rejected in the Swiss courts on the grounds that they lacked an interest worthy of protection and that their request concerned a matter of public, rather than individual interest. They therefore appealed to the ECtHR.
What did the ECtHR decide?
The ECtHR's decision in each case was as follows.
Exhaustion of domestic remedies - Duarte
In order to bring a claim to the ECtHR, all applicants must exhaust, or must have at least attempted to exhaust, all potential avenues for redress domestically first, for example by litigating their claims through the first instance and appeal courts in their jurisdiction.
In Duarte, it was "uncontested that the applicants did not pursue any legal avenue in Portugal concerning their complaints". The ECtHR rejected their arguments that the domestic remedies were inadequate and, instead, found that a "comprehensive system of remedies existed". The claim was therefore declared inadmissible. In contrast, in Klima, the applicants had exhausted all the domestic remedies available to them when the appeals throughout the Swiss court system were unsuccessful.
Victim status - Carême
To establish "victim status" (and therefore standing to bring a claim in the ECtHR), individual applicants must: (i) satisfy a minimum threshold of severity; (ii) pass the comparative test (that they are more likely to suffer harm than others); and (iii) show that they were specifically impacted.
The ECtHR held that Mr Carême did not meet these requirements. In particular, his claim to "victim status" was founded "on the sole ground that his current residence was in an area likely to be subject to flooding by 2040...[but] there was nothing to indicate where [his] residence would be in the years to come...so his interest appeared to be affected in too uncertain a manner". The ECtHR found that, in essence, Mr Carême's application was really one of public interest, rather than individual interest, and therefore he did not hold "victim status" 4 Mr Carême's claim was, therefore, declared inadmissible.
Similarly, the ECtHR held that the four individuals who brought the claim in Klima also failed to meet the requirements for "victim status".
However, the ECtHR found that the association which brought the claim alongside those individuals did satisfy the requirements because it was:
- lawfully established in its jurisdiction,
- set up to pursue aims including the defence of the human rights of its members from the threat of climate change; and
- representing "affected individuals ... who are subject to specific threats or adverse effects of climate change on their lives, health or well-being".
The decision on this issue is novel and sets a low bar for similar associations to demonstrate standing in future claims, even if the individual members of those associations would not meet the necessary requirements in their own right. The ECtHR's rationale appears to be based on their view that climate change's complexity, urgency and potential irreversibility justifies a unique approach to considering standing for associations pursuing climate change related aims.
Breaches of Articles 6 and 8 - Klima
In what has been described as a landmark decision, the ECtHR ruled that Switzerland had breached its duties under Article 6 (right to a fair trial) and Article 8 (right to respect for private and family life) of the ECHR by failing adequately to address the negative impacts of climate change.
The ECtHR analysed how Switzerland chose to implement policies and procedures to combat and mitigate climate change. It accepted that states enjoy a wide margin of appreciation with regards to how they choose to mitigate and combat climate change policies, targets and objectives. However, it considered Switzerland had fallen short due to gaps and delays in its proposed and implemented legislation, failures to adequately quantify its carbon budgets, and inadequacies in setting and complying with its emission targets and pathways. Switzerland had therefore breached Article 8 and, by dismissing the association's claim in its domestic courts, breached Article 6 as well.
The decision effectively reduces the margin of appreciation available for states when determining how to tackle climate change and its adverse effects, and makes clear that national courts must provide a means for claimants to challenge the actions taken by states in this respect. If they do not, the decision provides a route for commitments made in the Paris Agreement to be enforced against member states via the ECtHR.
What is the impact on future climate-related claims in England?
The decisions must be considered by UK courts but do not bind them. The Klima ruling nonetheless potentially impacts future public and private law climate-related claims in England.
From a public law perspective, Klima may encourage more claims against the government before the English courts (and, if necessary, the ECtHR) for failing to take adequate measures to address climate change, particularly by funded associations likely to have better resources to pursue claims than individual claimants.
However, obstacles remain for such claims and they will be carefully scrutinised by the English courts. It is noteworthy that the UK representative judge in the ECtHR, Tim Eicke KC, gave a strongly-worded dissenting judgment in Klima, outlining his view that the majority had "gone well beyond" its authority by "unnecessarily" expanding the concept of "victim status" and creating a new right under Article 8 to "effective protection by the State authorities from serious adverse effects on their life, health, well‑being and quality of life arising from the harmful effects and risks caused by climate change".
Judge Eicke KC also expressed concern that the decision would give "(false) hope that litigation and the courts can provide "the answer" without there being, in effect, any prospect of litigation...accelerating the taking of the necessary measures towards the fight against anthropogenic climate change". Conversely, he believes the decision will prove "an unwelcome and unnecessary distraction for the national and international authorities" given the "significant risk that they will now be tied up in litigation about whatever regulations and measures they have adopted...".
From a private law perspective, the Klima decision does not create a new cause of action against private individuals or entities. However, English courts may take ECHR rights and ECtHR decisions into account when interpreting existing causes of action. It is therefore possible that climate-related claims could be asserted against private individuals/entities based on existing causes of action but relying on the decision in Klima. A possible argument may be that the English courts, in accordance with the ECtHR's interpretation of Article 8 in Klima, should effectively expand the scope of common law nuisance or negligence to establish climate-related duties of care owed by private entities/individuals.
Again, any such claim in England would face significant obstacles. However, similar arguments have already been made and accepted in other jurisdictions. In Milieudefensie v Shell 5, for example, the Hague District Court recognised that a general tortious "duty of care" established obligations on Shell to reduce greenhouse gas emissions.
Policy impact
Beyond their legal impact, ECtHR decisions often generate significant publicity and can materially impact policy. The Klima decision is no different and increases the political pressure on member states to take effective action on climate change.
It also comes against the backdrop of elections around the world this year in which climate change issues are likely to be extensively debated. In the UK, Judge Eicke KC's dissenting judgment and concerns about the ECtHR overreaching its authority have been referenced in the debate about whether the UK should withdraw from the ECHR, given the ECtHR's perceived degree of control over matters which some argue should be within the control of elected politicians.
Footnotes
1. Duarte Agostinho and Others v Portugal and 32 Others 39371/20
2. Careme v France 7189/21
3. Verein KlimaSeniorinnen Schweiz and Others v Switzerland 53600/20
4. The ECtHR also noted that Mr Carême had submitted his application as the former mayor of Grande-Synthe. The ECtHR held that decentralised authorities exercising public functions, such as a mayor, are to be regarded as government organisations and are not entitled to apply to the ECtHR under Article 34 of the ECHR.
5. Vereniging Milieudefensie and Others v Royal Dutch Shell C/09/571932
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