European Court's Landmark Ruling Deems Climate Inaction Amounts to Violation of Human Rights
In Short
The Context: Litigation over State obligations to mitigate climate change intensifies globally, with NGOs and individuals pressuring corporations to cut emissions. The European Court of Human Rights ("ECtHR") issued three judgments on States' human rights duties to address climate change's impacts on individuals' lives, health, and well-being.
The Situation: The ECtHR's ruling confirms that the 46 States that are party to the European Convention on Human Rights (the "ECHR") have specific and positive human rights obligations to adopt and apply regulations and measures to mitigate the effects of climate change. Further, States have an obligation to reduce emissions consistent with international treaties, including the Paris Agreement.
Looking Ahead: There will likely be significantly more climate litigation against States that are party to the Convention, which includes a number of States outside the European Union. NGOs looking to promote increased climate change activity may use this decision against States to push them to do more to meet the Paris Agreement obligations.
On April 9, 2024, the ECtHR delivered three highly anticipated and significant judgments on the application of the ECHR. They include: (i) Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (App. 53600/20); (ii) Carême v. France (App. 7189/21); and (iii) Duarte Agostinho and Others v. Portugal and 32 Others (App. 39371/20).
While the ECtHR dismissed Carême and Duarte Agostinho on procedural grounds, it largely upheld the complaints in Verein KlimaSeniorinnen Schweiz.
Verein KlimaSeniorinnen Schweiz and Others v. Switzerland
The Complaint. Verein KlimaSeniorinnen Schweiz, a Swiss association established to promote and implement effective climate protection on behalf of its members, and four individual claimants brought a complaint in the ECtHR against Switzerland. The complaint alleged that the country had not taken sufficient steps to mitigate the effects of climate change. There were numerous third-party interveners in the case (including NGOs and United Nations bodies). The applicants' primary complaints were that Switzerland had breached their rights under Article 2 (right to life) and Article 8 (right to respect for private/family life) in failing to take adequate measures to mitigate climate change. They also asserted that Switzerland breached Article 6(1) (right to a fair trial) in failing to provide the applicant with a right of access to a court.
No Standing for the Individuals. The complaint brought by the four individual applicants was deemed inadmissible because although the individuals were particularly susceptible to the effects of climate change, the particular level and severity of the adverse consequences affecting the applicants did not give rise to a pressing need to ensure their individual protection. To have standing to bring claims at the ECtHR, applicants must be "victims" of a violation of an ECHR right (Article 34). In the context of climate change (noting that this would be a high threshold to reach), the ECtHR found that to have "victim" status, applicants would need to establish that there is a: (i) high intensity of the applicants' exposure to the adverse effects of climate change; and (ii) a pressing need to ensure the applicant's individual protection, which the applicants could not do.
Standing for Associations. The complaint brought by the association was admissible. The court found that associations had standing to bring an application in relation to the adverse effects of climate change because the association: (i) was lawfully established in the jurisdiction; (ii) demonstrated that it pursues a dedicated purpose in the defense of the human rights within the jurisdiction against threats from climate change; and (iii) was genuinely qualified and representative to act on behalf of members within the jurisdiction who are subject to threats or adverse effects of climate change.
Scope of Obligations Under the ECHR. The ECtHR ultimately found that Article 8 of the ECHR encompassed a right for individuals to effective protection by State authorities from serious adverse effects of climate change on their life, health, well-being, and quality of life. The court found that the State's primary duty was to adopt and apply regulations and measures capable of mitigating the existing and future effects of climate change.
However, the court acknowledged that there is some level of deference afforded to States (particularly in the choice of means to pursue the objectives). Nevertheless, the ECtHR set out some specific positive obligations of States. These include: (i) the adoption of GHG emissions reductions targets; (ii) the provision of evidence showing compliance with such targets; (iii) acting in a timely and appropriate and consistent manner when devising and implementing measures; and (iv) publicly disclosing important information relating to State measures to tackle climate change.
Findings. The ECtHR found that there was a significant gap in the Swiss authorities' process of putting in place the relevant domestic regulatory framework, including their failure to quantify national GHG emissions limitations through a carbon budget or otherwise, as well as previous failures to meet its GHG reduction targets. The ECtHR also found that the Swiss court's rejection of the applicant association's complaint without an assessment of the merits amounted to a breach of its right to a fair trial (Article 6(1)).
Additionally, the ECtHR noted that there is "cogent scientific evidence demonstrating that climate change has already contributed to an increase in morbidity and mortality" (relying in particular on the Intergovernmental Panel on Climate Change) and that a legally relevant relationship of causation may exist between State actions or omissions and harm affecting individuals). This factual acknowledgment will likely affect any climate-related litigation where such evidence is used.
Remedies. The ECtHR did not prescribe specific measures to the State for implementation of the judgment, due to the complexity and nature of issues involved. It found that under Article 46 of the ECHR, the State is under the obligation to ensure that general/individual measures be adopted domestically to put an end to the violation. It considered that it was for the Council of Europe's Committee of Ministers to supervise the adoption of measures aimed at ensuring that the national authorities comply with the ECHR's requirements.
Carême v. France
In the Carême case, a resident/former mayor of a French municipality alleged that France had taken insufficient steps to prevent climate change. He alleged his victim status was achieved by virtue of being a resident of a coastal municipality. However, the ECtHR found that he did not have victim status under Article 34 because he no longer lived in the area (which he alleged was subject to adverse effects of climate change), and the claim was declared inadmissible.
Duarte Agostinho v. Portugal and Others
In the Duarte Agostinho case, six Portuguese nationals alleged a breach of their ECHR rights against Portugal and 32 other respondent States due to existing and serious future impacts of climate change. The ECtHR declared the complaint to be inadmissible against Portugal on the basis that the applicants had not exhausted domestic legal remedies prior to their application to the ECtHR (a requirement under the ECHR). It also found the claim against the 32 other respondent States inadmissible because there were no grounds for extraterritorial jurisdiction of the ECHR; the obligation to secure the rights of the applicants extended only to Portugal, which is the jurisdiction in which all the applicants resided.
Landmark judgments on similar subject matter have also recently been issued by the English High Court, the Indian Supreme Court, and the Inter American Court of Human Rights ("IActHR").
English High Court: Friends of the Earth, Client Earth, Good Law Project v. Secretary of State for Energy Security and Net Zero [2024] EWHC 995 (Admin)
On May 3, 2024, the English High Court found that the government's Carbon Budget Delivery Plan (the "Plan") was unlawful. The Court found in favor of the climate change NGOs' judicial review claim—which challenged the lawfulness and rationality of the government's Plan—on a number of grounds, including that the Plan would not contribute to "sustainable development" if taken as a whole. The government likely will have to submit a revised plan in the next year.
Indian Supreme Court: M K Ranjitsinh & Ors v. Union of India & Ors
In an Indian Supreme Court decision issued on March 21, 2024, the Court recognized the right to be free of the adverse effects of climate change, as a distinct fundamental right under the Indian Constitution. Specifically, the Court found that the State must take "effective measures to mitigate climate change and ensure that all individuals have the necessary capacity to adapt to the climate crisis."
Inter American Court of Human Rights Judgment: Residents of La Oroya v. Peru
The IACtHR issued a landmark judgment on March 22, 2024, in a case involving allegations that industrial pollution from La Oroya Metallurgical Complex in Peru violated the right to a healthy environment. The IACtHR found that Peru is accountable for its failure to protect the inhabitants of the city of La Oroya who were exposed to pollution from a smelter complex operating without adequate controls.
Five Key Takeaways
- Increased climate-related claims against European States: The ECtHR's ruling—and the finding that associations can bring claims in a wider set of circumstances than individuals—will likely impact ongoing climate-related domestic proceedings against States and may result in the proliferation of human rights litigation by NGOs/activists against States.
- More expansive domestic legislation and policies targeting climate change: The ruling will likely encourage States to introduce further legislation and introduce more expansive policies targeting climate change.
- Significant effect on decisions of other international courts/tribunals: The ECtHR acknowledged the connection between human rights and international law on climate change and the establishment of obligations beyond those set out in the Paris Agreement. This will likely have significant implications for decisions in other international courts and tribunals, including the advisory opinions of the International Court of Justice, IACtHR, and the International Tribunal on the Law of the Sea. These bodies may acknowledge (as a matter of international law) that States have human rights obligations to mitigate against climate change effects.
- Corporate responsibility and climate change: At the international level, there are many efforts to influence the activities of business in the context of human rights. For example, the United Nations Guiding Principles on Business and Human Rights ("UNGPs") are a set of guidelines for corporations to prevent, address, and remedy human rights abuses committed in business operations. In addition, various UN entities have stated that States/corporations have responsibilities under the UNGPs to protect against human rights impacts related to climate change.
- Possible investor-State claims: If States introduce policies to limit climate change impacts, then the affected companies may have the ability to initiate proceedings under international law against the State. This is particularly relevant where a State revokes a license or significantly alters the laws relevant to climate change. Such claims have already been initiated in several countries, including Canada, the Netherlands, and Germany.
