On 9 April 2024 the European Court of Human Rights ("the Court") Grand Chamber handed down three judgments considering climate change related arguments under the European Convention on Human Rights ("the Convention").
While the Court held that the claims in Carême v. France ("Carême"); and Duarte Agostinho and Others v. Portugal and 32 Others ("Duarte Agostinho") were inadmissible, in Klimaseniorinnen Schweiz and Others v Switzerland ("Klimaseniorinnen"), the Court found for the first time that a State's failure to take actions to mitigate climate change breached Article 8 (right to private and family life) and Article 6(1) (right to a fair trial) of the Convention.
The Court's decision in Klimaseniorinnenis significant because other states in the future could also be held accountable for inadequate climate policies and mitigation measures if they are not sufficient to protect the human rights of their citizens.
The inadmissible cases
In Carême, the former resident and mayor ofGrand-Synthe in France argued that the French government had taken insufficient steps to prevent global warming and had violated Articles 2 (right to life) and Article 8 of the Convention.
The Court declared the application inadmissible because the applicant did not have victim status within the meaning of Article 34 of the Convention as he no longer resided in Grand-Synthe, nor in France for the time being and no longer had any sufficiently relevant link with Grande-Synthe.
In Duarte Agostinho six young Portuguese nationals complained about the current and future severe consequences of climate change, which they argued Portugal and 32 other respondent states were responsible for.
The Court declared the claim inadmissible as the applicants had not exhausted all domestic remedies available to them in Portugal, which is a requirement under the Convention.
The claim was also declared inadmissible as it was raised against states other than Portugal. The Court acknowledged that in the context of climate change, the standard test of extraterritorial jurisdiction did not fit but found that there were no grounds in the Convention for the extension of the extraterritorial jurisdiction of other respondent states in the manner suggested by the applicants.
The Court noted that this could lead to an untenable level of uncertainty for states. The arguments presented by the applicants included an unlimited expansion of states' extraterritorial jurisdiction which would extend their responsibilities under the Convention to people practically anywhere in the world. It would in effect turn the Convention into a global climate change treaty.
KlimaSeniorinnen v Switzerland
The claim was brought by four Swiss nationals and a Swiss organisation; KilmaSeniorinnen (Swiss Elders for Climate Protections), who complained that the Swiss government had failed to take sufficient action to mitigate climate change in contravention of the Convention and, in particular, failed to protect their health from risks associated with climate change-induced heatwaves.
While the four individual applicants' complaints were found to be inadmissible as they did not fulfil the victim status criteria, the applicant association was found to have standing to bring its claims.
In a landmark decision, the Court ruled that Switzerland had violated Article 8 of the Convention due to critical gaps in its relevant domestic regulatory framework and its failure to meet past greenhouse gas emission targets.
The Court's ruling means that, in effect, Article 8 encompasses a right to protection by the state from the serious adverse effects of climate change on lives, health, well-being and quality of life.
The Court also determined that an association does not need to show that its members or those it is acting on behalf of would, themselves, have met the victim status criteria under Article 34, in order to have standing to bring a claim.
The Court emphasised that the State's primary obligation, under Article 8, in the context of protecting against the adverse effects of climate change, is to effectively apply regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change.
The Court also found that Swiss courts' failure to hear the challenge to government's inaction further breached Article 6(1) of the Convention as the Swiss courts had not provided convincing reasons as to why they had considered it unnecessary to examine the merits of the applicant association’s complaints.
Dissenting opinion
In dissent, British Judge Eicke said that the Court's decision has gone beyond what is legitimate and permissible for a court to do, effectively creating a new right under Article 8 (and possibly Article 2) to effective protection by State authorities from the adverse effects of climate change and a new positive duty to adopt effective practices to mitigate climate change
Implications of Klimaseniorinnen
The decision in KlimaSeniorinnen arguably paves a clearer pathway for concerned parties who seek to hold states accountable for implementing climate policies and measures by allowing a claim to be made under human rights law.
The decision in KlimaSeniorinnenis part of the ongoing worldwide rise in climate change related claims. It is likely that the decision will lead to an increase in climate change litigation made under the Convention both domestically and internationally.
Contributors
Partner & Solicitor Advocate
Associate (Qualified in Australia)
Trainee Solicitor
