Article 8 and climate change: a view of …

This blog sets out the key findings in Verein Klimaseniorinnen Schweiz, the ECtHR’s recent ground-breaking case on the duties of states to take action on climate change, focusing on its findings under Article 8 ECHR.

The complaint

The applicants challenged various failures by the Swiss authorities to mitigate the effect of climate change which adversely affected their lives (esp. due to global heating). They argued that Switzerland had failed to fulfil its duties under Article 2 ECHR to protect life effectively and under Article 8 ECHR to ensure respect for their private and family life, including their home.

The applicants complained that Switzerland had failed to introduce suitable legislation and put in place appropriate and sufficient measures to attain targets for combating climate change, in accordance with international agreements it had signed. In particular, Switzerland had not set a carbon budget and its environmental legislation merely required action “in good time”.

They also argued that they had not had access to a court under Article 6(1) and had been denied any effective domestic remedy for submitting their complaints under Articles. 2 and 8 ECHR.

The related cases

Verein KlimaSeniorinnen Schweiz was granted priority, as were Carême v France (app. No. 7189/21) and Duarte Agostinho and ors v Portugal & Ors (app. No. 39371/20). While not formally linked, the hearings were staggered and all ruled on by the same composition of the Grand Chamber.

In Carême, the Court found that former resident and mayor of Grande-Synthe did not have ‘victim status’ under Article 34 ECHR as he did not live in Grande-Synthe, nor even currently in France, and did not have any sufficiently relevant link with Grande-Synthe (an area he complained was being affected by climate change).

Agostinho was a complaint by six Portuguese young people brought complaints about the current and serious future effects of climate change. They argued that Portugal and 32 other states were responsible for the present situation.

The ECtHR held that they had failed to exhaust domestic remedies in Portugal and their complaint against other states was inadmissible as there was no basis for extending the ECHR’s territorial jurisdiction.

The applicants had argued that the test in the context of climate change should be that control over their Convention interests should be sufficient for extraterritorial effect. It was held that this would lead to a critical lack of foreseeability in the ECHR’s reach and untenable uncertainty for States. It would be an unlimited expansion of extraterritorial jurisdiction to people practically anywhere in the world.

Schweiz: a sole successful case

This was the sole successful case, with the Court finding violations of Articles 8 and 6 ECHR.

This was arguably the most dramatic and wide-ranging climate change judgment from ECtHR, opening the door to similar litigation against other states.

Grand Chamber judgment: preliminary points

The Court accepted that “climate change is one of the most pressing issues of our time”. The damaging effects of climate change “raise an issue of intergenerational burden-sharing … and impact most heavily on various vulnerable groups in society, who need special care and protection from the authorities.”

The Court’s role was limited to issues within its competence under Article19 ECHR. Judicial intervention “cannot replace or provide any substitute for the action which must be taken by the legislative and executive branches of government”.

It also stated that “the Court must also be mindful of the fact that the widely acknowledged inadequacy of past State action to combat climate change globally entails an aggravation of the risks of its adverse consequences, and the ensuing threats arising therefrom, for the enjoyment of human rights… which the Court cannot ignore”.

It noted the complexity of establishing causation in climate change cases; it is not localised, its operation is complex and indirect, and “emissions have no regard for national borders”.

A mere allegation that the State failed to comply with domestic environmental rules or standards would not engage the ECHR, although this may be relevant (as may international standards).

While climate change is a global phenomenon requiring global action, “each State has its own share of responsibilities to take measures to tackle climate change”. Therefore, each state can be responsible for its share of breach of Convention rights. There is no ‘but for’ causation – “what is important, and sufficient to engage the responsibility of the State, is that reasonable measures which the domestic authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm”.

The Court emphasised the important role of a state’s margin of appreciation as to how they secure Convention rights. Climate protection should carry “considerable weight” in the assessment of competing considerations. The margin of appreciation is reduced as regards a state’s commitment to the necessity of combating climate change and setting aims/objectives to achieve this.

However, the margin of appreciation is greater regarding states’ choice of means, including the operational choices and policies to achieve those aims. Article 8 has often been used to deal with environmental problems deemed to affect Convention rights. It encompasses a right for individuals to effective protection by State authorities from the serious adverse effects of climate change on their lives, health, wellbeing, and quality of life.

A state’s primary duty is to adopt, and effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible future effects of climate change.

States “need to put in place the necessary regulations and measures aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, notably the right to private and family life and home under Article 8”.

“in order for this to be genuinely feasible, and to avoid a disproportionate burden on future generations, immediate action needs to be taken and adequate intermediate reduction goals must be set for the period leading to net neutrality”. (emphasis added)

As regards Switzerland’s actions: “given the pressing urgency of climate change and the current absence of a satisfactory regulatory framework”, the Court could not accept that a mere legislative commitment to adopt concrete measures “in good time” satisfied the duty to provide effective protection from climate change.

Article 8 breaches occurred in this case, due to the “critical lacunae” in Switzerland’s domestic regulatory framework, including the failure to quantify national GHG emissions limitations (e.g. by way of a carbon budget). Switzerland failed to act “in good time and in an appropriate and consistent manner”, thereby exceeding its margin of appreciation.

Grand Chamber judgment: Article2

Regarding Article 2, the applicants adduced “compelling” scientific evidence showing a link between climate change and increased mortality, especially re: vulnerable groups.

In order for a positive obligation to arise as a result of environmental degradation, a threat to the right to life must be at stake: failures regarding climate change are inherently capable of putting an individual’s life at risk.

However, Article 2 cannot operate in the abstract to protect the possible from “any possible kind of environmental harm arising from climate change”: There must be a real and imminent risk to life, i.e. a “serious, genuine and sufficiently ascertainable threat to life”. Notably, it may be impossible to devise a general rule, given the specificities of each case.

In light of its analysis of the Article8 issues, the Court found it “unnecessary to analyse further the issues pertinent to the threshold of applicability of Article 2”. Article 2 caselaw nevertheless informed its analysis of the case law, given the very significant degree to which Article 8 and Article 2 caselaw was similar in this area which “when seen together, provide a useful basis for defining the overall approach to be applied in the climate-change context under both provisions”.

Conclusion (Articles 2 and 8)

While environmental protection was already well established in ECtHR caselaw, in particular under Article 8 ECHR, the Court saw this case as raising “unprecedented issues” and clearly considers that it has extended the rights recognised by the ECHR.

Article 8 ECHR continues to be the crucible of new rights with the Court fudging the Article 2 issue in order to avoid dealing with such politically sensitive and polycentric issues under an absolute right as opposed to a qualified one. Article 8 allows for a balancing between the pressing issue of climate change and the difficult political, social, and financial decisions States need to make.

Despite rejecting the claim under Article 2, the Court has not closed door to claims invoking the right to life but Article 8 challenges are likely to be much clearer and stronger in general. It is likely that very stark facts would be necessary to show a sufficiently immediate and imminent risk to life from climate change.

The complexities of addressing climate change means that the Court will show substantial deference to States as to how the address the crisis. But this judgment demonstrates that it will not defer to States about the importance of recognising the issue and in setting firm targets.

This blog was written by Miranda Butler.