European Court of Human Rights rules that climate change mitigation is an actionable right under Article 8 ECHR

11 June 2024 by Rosalind English

This article was first published in Edition 33 of the Journal of Environmental Law and Management. It is reproduced here with the kind permission of the editors at Lawtext Publishing Limited

On Monday 9 April 2024 the Strasbourg Court handed down judgment in three cases involving climate change: Carême v France (ECHR no 7189/21), Duarte Agostinho v Portugal and 32 others ( ECHR no 39371/20), and Verein Klimaseniorinnen v Switzerland [2024] ECHR 304, no 53600/20.

Interestingly, shortly before the Strasbourg judges had reached their decision in these three cases, the New Zealand Supreme Court considered an application for strike-out of a challenge to a number of carbon-emitting businesses based on the tort of public nuisance as well as a new form of action, that involved a duty to cease materially contributing damage to the climate system: Michael John Smith (appellant) v Fronterra Co-operative group Ltd and Others [2024] NZSC 5. I will come back to this judgment later in this article.

First, we turn to the more recent Strasbourg cases. Each of these cases was examined by the same composition of the Grand Chamber, and each raised unprecedented issues before the Court.The particular nature of the problems arising from climate change in terms of the Convention issues has not so far been addressed in the Court’s case law. I will concentrate on the one successful application, Verein Klimaseniorinnen v Switzerland. Both Carême and Duarte Agostinho failed with their applications on procedural grounds; most notably, the Duarte Agostinho application was dismissed due to a failure to exhaust domestic remedies.

In Verein Klimaseniorinnen, some female senior citizens and a representative organisation (Klimaseniorinnen) argued that the impact of global warming on their health breached a number of Articles of the ECHR. The Strasbourg Court was satisfied in this instance that they had exhausted their local remedies, although it found that the individual applicants had not satisfied ‘victim status’ for the purposes of Article 34 ECHR; they had failed to demonstrate the existence of a sufficient link between the harm they had allegedly suffered (or would suffer in the future) and climate change. But the Court held, by 16 votes to one, that the applicant association did have locus standi in the present proceedings and that its com- plaint should be examined under Article 8 of the Convention.

Having admitted the association’s complaint, the Grand Chamber found that states are under a positive obligation under Article 8 to provide effective protection from ‘serious adverse effects of climate change on their life, health, well-being and quality of life’. In order to achieve this, states must enforce regulations that are capable of mitigating current and future impacts of climate change by having in place a plan for the reduction of greenhouse gas (‘GHG’) emissions and achieving carbon neutrality over the decades leading to 2050. Switzerland had failed in this in that it had not quantified a carbon budget, nor had it set limits on greenhouse gas emissions. It had also exceeded its previous GHG emission reduction targets, which resulted in a violation of Article 8. There was ‘no doubt’, said the Court, that climate change-induced heatwaves had caused, were causing and would cause further deaths and illnesses to older people and particularly women (represented by the Klimaseniorinnen association).

There was one sole dissent from the majority’s findings on admissibility and the merits. Further on in this article I will explore the different opinion of the British representative on the panel, Judge Eicke. Before that, we will look at the main arguments before the Court.

The Swiss Government argued that global warming had not reached the necessary level to create a tangible effect on the private and family life of the individual applicants under Article 8, including on their mental well-being.

The respondent state party also maintained that the Court should not allow the applicant association to circumvent the mechanism established under the Paris Agreement by seeking to establish, under the Convention, an international judicial control mechanism to review the measures to limit GHG emissions.

Various other governments intervened in this application to say, in effect, that the response to climate change should be an effective global response and that the Court should not, indeed could not, engage in a form of law- making and regulation which would bypass the role of the democratic process and institutions in the response to climate change.

The Swiss Federation also had quite a forceful argument on the in limine question of jurisdiction: it submitted that GHG emissions generated abroad could not be considered as attracting the responsibility of Switzerland as those emissions could not be directly linked to any alleged omissions on the part of Switzerland, whose authorities did not have direct control over the sources of emissions. Moreover, the whole system established by the UNFCCC, the Kyoto Protocol and the Paris Agreement was based on the principle of territoriality and the responsibility of states for emissions on their territory.Thus, said the respondent, the applicants could not complain about certain imports containing ‘embedded emissions’ from other jurisdictions. The Court did not agree. Although ‘embedded emissions’ contained an extraterritorial aspect, it did not raise an issue of Switzerland’s jurisdiction in respect of the applicants, but rather one of Switzerland’s responsibility for the alleged effects of the ‘embedded emissions’ on the applicants’ Convention rights.

The applicants contended that the jurisdictional point should not prevent them proceeding; they stressed that the fact that multiple states were responsible for GHG emissions did not absolve the respondent state of its responsibility.The causal test that should be applied in the context of climate change was whether there was individual, partial or joint responsibility to contribute to the fight against dangerous climate change.

The Court responded to these arguments by accepting state responsibility under the Convention but according a broad margin of appreciation. It suggested that complicated questions of causality and attribution, as well as the difficulty of specifying concrete measures and balancing competing interests within available resources, render climate change meaningfully different to other environmental cases,9 thus requiring a particularly wide discretion in the choice and implementation of mitigating measures.10
The Court has already established that Article 8 may apply in environmental cases whether the pollution is directly caused by the state or whether state responsibility arises from the failure to regulate private industry properly (see, for instance, the cases of Lopez Ostra v Spain ECHR no 16798/20 (9 December 1994) and Hatton and Others v the United Kingdom [2003] ECHR 338, no 36022/97 (8 July 2003). Article 8 is seen as the lex specialis in this area but sometimes the Court has allowed challenges under the right to respect for life under Article 2; see ÖneryIldIz v Turkey [2004] ECHR 657, no 48939/99 (30 November 2004).

Judge Eicke’s dissent from the majority has rightly received considerable coverage, because it goes to the very heart of the role of the Court within the Convention system and the role of a court in these unprecedented challenges posed to humanity by climate change.

He reached his conclusions on the basis of a ‘very different (and, arguably, a more orthodox) approach to the Convention its case-law’. His disagreement, he says, went well beyond a ‘mere difference in the assessment of the evidence or a minor difference as to the law’.

For a start, he was uncomfortable with the idea of victim status vis-à-vis a future risk. He found that granting victim status to the association had no justification in the Court’s own case law, particularly when their own members had been rejected as victims. Also, if the signatory state does not allow representative associations standing, the European Court of Human Rights would, in effect, be acting as a first instance court.

The majority, said Judge Eicke, had gone well beyond what he considered to be ‘the permissible limits of evolutive interpretation’ by creating a new right (under Article 8 and, possibly, Article 2) 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’.

He was not convinced that the Court had the capacity to engage in reviewing a European government’s adequacy in implementing climate change measures. This kind of abstract review would simply distract the Contracting Par ties and slow down any necessar y processes and will undermine the rule of law. In his view, finding a substantive case under Article 8 showed that the court was trying ‘to run before it can walk’. It would already have achieved much if it had focused on the applicants’ lack of access to court, a violation of Article 6 of the Convention. It was a distraction from the negotiation and implementation of climate change mitigating laws and would create a false hope that litigation and the courts can provide an answer.

But his voice was a lone protest against 16 and, for the moment at least, we are left with the impression that aver ting climate change is an inherent par t of the obligation on states to protect human rights.

I promised a final note on the New Zealand case by means of widening the focus on climate change litigation across the globe.

The plaintiff before the NZ Supreme Court was an elder of a Maori tribe and climate change spokesman for a national forum of tribal leaders. He alleged that the respondents had contributed materially to the climate crisis and had damaged, and would continue to damage, his lands, including places of customary, cultural, historical, nutritional and spiritual significance to him and his whaˉnau (a Maori concept for the extended family group). As already mentioned, he rested his case on the established common law of nuisance and a novel tort. The respondents’ application to strike out had been upheld in the courts below.

He submitted that there was nothing uncommon in using private tort law to support statutory regulation.The respondents countered by maintaining that the pleaded claim invited judicial criticism of the statutory framework, creating a parallel and inconsistent regulatory regime.They submitted that the court ought not to engage in a judicial response to climate change, because it is not equipped to design or implement one. The problem is polycentric and political; there are a broad range of interests and trade- offs at issue; and complex scientific and economic judgments are required. It would be a departure from the common law’s ‘incremental method of development’, and an invitation to the judiciary to ‘rewrite the foundations of tort law, and to step beyond tort law and into the domain of the political branches’. They therefore sought to strike out this claim as disclosing no cause of action.

The Supreme Court considered that any court considering a strike-out claim had to be certain that the claim is so untenable that it cannot succeed. In New Zealand courts it has become established that a claim should be struck out on the ground that policy undoubtedly militates against a duty of care only if it can be said that this is undoubtedly so. Everything depends on whether it is necessary for the case to go to trial to ‘enable a fair and fully informed policy determination to be made’. If it was not possible for the court to give a certain answer whether the claim was maintainable, it would not be appropriate to strike it out. In this case the Supreme Court considered it significant that the claim, though novel, was ‘at least founded on seriously arguable non-trivial harm’.

The judges therefore decided that the plaintiff should have his day in court; the requirements for strike-out had not been met in this case.The appeal was allowed and the plaintiff’s claim was reinstated:

“The pleaded effects [of climate change], including inundation of coastal land and impacts on fishing and cultural interests, go beyond a wholly common interference with public rights.

It may indeed be beyond the capacity of the common law to resolve climate change in fact, but we are not presently convinced, at this stage of the proceeding, addressing only strike out, that the common law is incapable of addressing tortious aspects of climate change.”

The implications of this ruling, with the Strasbourg judgment against Switzerland hard on its heels, could be enormous, particularly if the English courts decide to follow the New Zealand model. In its conclusion to this lengthy judgment, the New Zealand court observed that:

“the principles governing public nuisance ought not to stand still in the face of massive environmental challenges attributable to human economic activity. The common law, where it is not clearly excluded, responds to challenge and change in a considered way, through trials involving the testing of evidence.”

We therefore face the possibility that both the common law in the form of nuisance and the ECHR in the guise of a right to respect for private and family life under Article 8 can be used as a basis for challenge against government inaction or omissions in the sphere of climate change.

Listen to Episode 195 of Law Pod UK where Rosalind English discusses these cases with environmental law specialist David Hart KC of 1 Crown Office Row