Senior Swiss Women Pave The Way! Landmark ruling confirms that insufficient climate action taken by a government also violates humans rights. Corporates next ?
April 2024The Grand Chamber of the European Court of Human Rights (“European Court”) delivered an important ruling earlier last week when it confirmed that a government was obligated to take action to meet its climate targets under human rights law. It is thought that this landmark decision could prompt further environmental activism internationally and help to influence future legal decisions which may pave the way for similar actions against corporate entities.
Summary of the cases
The European Court’s ruling concerned three different fast-tracked cases in which members of the public asserted that their respective governments were violating the European Convention on Human Rights (“Convention”) by taking insufficient action to stop or mitigate the effects of climate change.
Case 1: Carême v. France
This case concerned a complaint made by a former Mayor of a French town at risk of increased flooding allegedly due to France’s failings to take sufficient action to avoid global warming. It is understood that the complainant also raised arguments concerning rights to life and privacy and family life.
The European Court dismissed the case since the complainant did meet the victim status criteria within Article 34 of the Convention: he no longer resided or had a relevant legal link to the French town.
Case 2: Duarte Agostinho and Others v. Portugal and 32 Others
This case was brought by six Portuguese applicants aged between 12-24 against 33 Paris Climate Agreement signatory countries, including Portugal, for alleged failings to comply with climate emissions reduction commitments. The applicants asserted that the serious present and future effects of climate change (including heat waves, wildfires, and smoke) negatively impacted their lives, peaceful enjoyment of their homes, mental health, and wellbeing.
The European Court held this case inadmissible since the applicants had not exhausted all relevant legal avenues available nationally. In addition, the case against another 32 countries was viewed as extraterritorial, potentially leading to an expansion of the states’ jurisdiction.
Case 3: Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (Application no. 53600/20)
The relevant case was brought by four women and the KlimaSeniorinnen Schweiz (Senior Women for Climate Protection) group. The association’s membership is based across Switzerland and exceeds 2,000 members. In summary, KlimaSeniorinnen Schweiz argued that Switzerland had failed to act to cut emissions in line with its carbon emissions reduction target. The group asserted that their health and living conditions were at risk during heat waves related to global warming and that their human rights were violated by the Swiss Government’s approach.
In support of its position the group pointed to research, such as the UN Intergovernmental Panel on Climate Change report, indicating that older women were especially vulnerable and at risk to temperature-related illnesses. Four individuals specifically asserted that they suffered from heart and respiratory diseases, putting them at particular risk of death during very hot days. Other members allegedly struggled with other effects or symptoms, such as fatigue, due to the extreme heat being experienced across the country.
Legal claims had been issued at a national level, including to the Swiss Federal Council, back in late 2016. Despite the Swiss Federal Council dismissing the group’s case in 2020, they subsequently took steps to turn to the European Court. Greenpeace Switzerland supported the claim.
The Swiss Government sought to raise a distinction, namely that human rights law did not apply to climate change and asserted that addressing climate change would be a political process.
Grand Chamber Judgments
The ruling is viewed as a mixed result by some, especially since two of the cases were rejected as inadmissible. However, in respect of KlimaSeniorinnen Schweiz’s case, the European Court held that the Swiss Government was legally obligated to meet its climate targets under human rights law. Article 8 of the Convention includes a right to protection by state authorities from the serious adverse impacts of climate change on private and family lives, health, wellbeing, and quality of life. Similar principles apply under Article 2, although no finding was made in this respect.
In addition, concerning access to court, the group was not given a fair and public hearing for the purposes of Article 6 of the Convention. The European Court held that the Swiss courts appeared to provide arbitrary decisions and no convincing reasons on why the merits of the group’s complaints were not examined. Further, the courts had failed to consider the scientific evidence concerning climate change, nor taken the complaints raised seriously. The judgment clearly signals that national courts must properly engage with climate change issues: these should not automatically be viewed or treated as political issues or general public interest complaints with which the courts should not interfere.
The decision highlighted that Switzerland had taken inadequate steps to combat climate change, including failing to meet past targets. According to online reports following the case, Switzerland had targeted a reduction in greenhouse gas emissions of 20 percent by 2020 compared with the 1990 levels. However, it only reduced its emissions levels by approximately 11 percent between 2013 – 2020. The European Court found that the Swiss Government had failed to comply with its duties or positive obligations under the Convention in a prompt or consistent manner e.g. there were critical gaps in the process for devising and implementing the relevant domestic legal or regulatory framework, including a failure by the Swiss authorities to quantify national greenhouse gas emissions limitations (via a carbon budget or otherwise).
It was held that the four individual applicants did not meet the applicable threshold for victim status criteria under Article 34 of the Convention and so these complaints were declared inadmissible. Conversely, the group had the requisite standing to bring the case since it was lawfully established in and connected with the jurisdiction; able to demonstrate its purpose of defending the human rights of its membership; and regarded as qualified and representative of its members.
The European Court ordered the Swiss Confederation to implement measures to address the identified shortcomings. KlimaSeniorinnen Schweiz was awarded €80,000 for its costs in the action. Since no claim had been submitted for damages, no sum was awarded on that account.
This verdict was delivered via a clear majority by the top bench of the European Court – it is final and binding and cannot be appealed. However, it is notable that Judge Eicke KC (the UK’s judge in the European Court), appears to have expressed a partly concurring and partly dissenting opinion.
The UK landscape
Under the Climate Change Act 2008 the UK committed to reduce its greenhouse gas emissions to 80%, compared to 1990 levels, by 2050. In 2019, this legally binding target was extended to achieving net zero by that date.
Climate litigation in the UK has historically focussed upon challenges to specific development proposals or decisions, or Government policies or strategies linked to net zero commitments. The earlier judicial review matters or statutory challenges of specific infrastructure or energy projects did not gain much traction with the courts in the UK despite the risks of potential environmental impacts. In such cases, the relevant authorities and decision makers were able to prioritise energy policy and need, provided that any adverse climate change effects were also appropriately considered. We have also seen various challenges linked to planning applications and in the context of transportation and aviation policies, such as the expansions of Heathrow Airport and Bristol Airport. Our earlier articles covered the decisions concerning Heathrow’s third runway.
However, we are now starting to see a shift in the courts’ approach, perhaps alongside wider environmental developments and press and public interest. There has also been a marked increase in challenges concerning political policies and strategies. In R (Friends of the Earth Ltd and others) v Secretary of State for Business, Energy and Industrial Strategy in 2022, the High Court partially upheld a challenge to the UK Government’s Net Zero Strategy concerning government obligations under the Climate Change Act. The Government published a replacement strategy following this, which still attracted legal scrutiny. Subsequent High Court decisions have also indicated that climate change and net zero are matters of wider public interest. Earlier this year, the High Court heard three challenges to the UK Government’s Carbon Budget Delivery Plan.
The recent court decisions highlight the complexities of public law and the tensions between balancing competing interests of public bodies on the one hand, and the wider policy, environmental or scientific issues on the other. Human rights issues had been on the radar of certain UK environmental groups, and there had been speculation that increasingly novel claims might be commenced as a result. Whilst there has been a reluctance for court intervention around the application of the Convention, the European Court’s approach in this recent and early ruling could lead to an exponential increase in litigation on such matters.
Commentary
Whilst the facts of the three different cases and their outcomes varied, a common theme throughout the arguments covered concerned whether government inaction around climate change also violated fundamental human rights. It is understood that this is the first case where an international court has confirmed that a climate crisis is also a human rights crisis. It also follows a range of increased climate-related activism and new claims seeking to prompt governments or public authorities globally to act against global warming and to protect human rights.
The judgment recognised a primary obligation on states to devise, adopt and apply appropriate measures aimed at mitigating the future impacts of climate change. Accordingly, it is anticipated that this decision, together with continued advancements in science, may bolster future environmental activism by individuals or groups hoping to increase accountability of Governments or to drive further positive change strategy. More specifically, whilst not binding on other national courts, the verdict potentially opens the door to similar cases against members of the Council of Europe and will no doubt be persuasive.
Significantly, the judgment could also have the potential to impact corporate entities, similar to the position argued in cases such as the 2021 Milieudefensie v Royal Dutch Shell action (under appeal). Our earlier article commented on the Milieudefensie case and highlighted the growing threat of climate-related litigation in the context of businesses. Therefore, businesses with operations or projects directly impacting the environment (such as those in the industrial, manufacturing, energy or mining sectors, or those working on high-emitting assets), as well as their directors and officers, may also come under increased public scrutiny. It is feasible that claimants may include human rights-based allegations in future claims, for example as an additional or alternative head of loss, as another way to try to demonstrate liability and obtain damages. With the growing body of action in this space and ESG obligations however, it will soon become very difficult for commercial companies to seek to defend claims on the basis that they were unaware of the potential climate risk, and they will no doubt have to take account of this area of changing case law when considering their environmental public reporting and disclosure obligations.
Please contact the authors should you wish to discuss the issues covered in this article.
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