Last year, the UN warned the world that governments were far from preventing dangerous climate change impacts with imperative efforts needed before 2030. Just this month, on 11 April 2024, we learned that a draft of the EU priorities’ list only includes mentioning the environment once in a promise to create a ‘business-friendly environment’.
Recently, the European Court of Human Rights (the Court) was called to assess three major climate cases where the applicants claimed that insufficient governmental policies on environmental matters violate fundamental rights established by the European Convention of Human Rights (the Convention) (including the right to live, and the right to a fair trial and access to justice).
The European Court of Human Rights confirms that it is there to develop jurisprudence on climate change issues
On 9 April 2024, the Court gave its final decisions. Duarte Agostinho and Others v. 32 Other Member States was brought by a group of young Portuguese citizens against 33 contracting parties claiming that their rights to life and to family life under the Convention were breached. Carême v. France was brought by the ex-mayor of a city in France, who had a similar claim against the French government. Both were dismissed as inadmissible based on procedural issues. However, Verein KlimaSeniorinnen Scheiwz and Others v. Switzerland was considered admissible.
While the facts of these three cases are different, they still have a common message: that governmental climate inaction should be considered as a violation of human rights under the Convention.
It’s not business as usual: governmental inaction to fight climate change is a violation of human rights
There are two major conclusions in the Verein KlimaSeniorinnen Scheiwz and Others v. Switzerland: one on substance and the other one on procedural aspects, both with significant consequences for the future of climate litigation.
For the first time ever, the Court concluded that governmental inaction in mitigating climate change impacts can amount to a violation of the human rights established under the Convention. The Court concluded that environmental degradation has harmed and has the potential to further harm the enjoyment of human rights, causing irreversible effects.
According to the Court, victims are welcomed but only if they are associations and not individuals. This is probably the most significant procedural outcome from this case. The application was accepted even if the ‘individual victim’ status was refused to the individual women who belonged to the association.
The Court ruled that individuals must demonstrate direct and personal impact from government action or inaction and must show significant exposure to adverse climate effects, and a pressing need for individual protection. In this case, the Court found the four individual applicants did not meet these criteria and declared their complaints inadmissible.
However, the Court recognised the unique nature of climate change as a global concern and allowed associations to take legal action on behalf of affected individuals, provided they meet the following conditions outlined in paragraph 502 of the judgment:
- be lawfully established in the relevant jurisdiction,
- demonstrate a dedicated purpose aligned with human rights defence, including collective action against climate change threats,
- be regarded as genuinely qualified and representative individuals facing climate change threats
With the rise in climate change-related lawsuits, the Court's decision is likely to boost the involvement of Non-Governmental Organisations in climate change litigation. As the judgment aims to prevent allowing virtually every person to start a case before the Court it sets a challenging standard for individuals seeking to bring their climate cases to Strasbourg.
A gender dimension in climate litigation?
The ruling also analyses the concrete Swiss policies on climate change (including non-compliant legislation and emission reduction pathways with the 1.5ºC commitment). Moreover, the government admitted having missed its own 2020 climate target. In fact, even after the pandemic restrictions, greenhouse gas emissions were rising significantly.
In 2018 a special IPCC report, referenced in the judgment, found that women and the elderly are amongst those at highest risk of temperature-related deaths during heat wave seasons. Indeed, women older than 75, like the applicants, ‘(...) had a bigger risk of premature loss of life, severe impairment of life and of family and private life, owing to climate change-induced excessive heat than the general population’ (paragraph 67). In addition, an analytical study for the UN Humans Rights Council, published in 2021, concluded that climate change has differential effects when it comes to gender. The gender variable must be taken into account in the environmental decision-making process. Nevertheless, in most countries that doesn’t always happen.
It has been shown that women’s needs are often ignored by public policies. So, it is unsurprising that the same happens in the climate change field. This case brings forward the gender dimension of climate change. While the Court did not explicitly engage with the issue, the applicant’s arguments, backed by unequivocal scientific evidence, are clear on the existence of gender discrimination and add a thought-provoking dimension to the case.
What does this win mean for the future of climate litigation?
This decision is a major victory for future climate litigation cases given that it will create opportunities for similar claims to be brought in all jurisdictions of the contracting parties to the Convention.
The ruling contains several relevant conclusions which demonstrate, for the first time in a court of law, a direct link between governmental inaction regarding climate change mitigation and a violation of human rights. It is clear that, for the Court, the question is no longer whether human rights courts should address the impacts of environmental harms to human rights but rather how, confirming that the environmental crisis is truly a human rights crisis (paragraph 451).
This ruling also contributes to strengthening the Paris Agreement. While almost every country in the world agreed to pursue efforts to cap global warming to 1.5ºC above pre-industrial levels, this commitment was non-binding. This decision judicially empowers the limit established by the agreement, given that the court concluded that Switzerland’s efforts to achieve it haven’t been sufficient under European human rights law.
What does this case mean for EU Law?
The potential accession of the EU to the Convention, following the conclusion of the negotiations at technical level in March 2023, sets the stage for a climate case. This case could involve the EU as a defendant, accused of insufficient actions to adequately tackle climate change.
The recognition of victimhood in climate cases sends a very strong message to the Court of Justice of the European Union. The Court of Justice has rendered access to justice virtually impossible for individuals and associations in climate cases and clarified in Carvalho that its doors are closed unless Article 263 Treaty on the Function of the European Union is reformed. The Charter of Fundamental Rights of the European Union states that it should provide at least the same level of protection as the Convention (Article 52). This includes the same standard of protection of climate litigants who want to bring a case to the Court of Justice. Thus, following this case, the Court of Justice might have to consider loosening its admissibility requirements to facilitate access to justice in climate cases.