European Court of Human Rights confirms right to effective protection from serious adverse effects of climate change

The Grand Chamber of the European Court of Human Rights has held in a landmark decision that a Contracting State has breached its duties under the European Convention on Human Rights in the context of climate change: Verein KlimaSeniorinnen Schweiz and Others v Switzerland.

The Court found that Switzerland has breached its obligations under Article 8 (right to respect for private and family life) and Article 6(1) (right to a fair trial/access to the court) of the Convention by not taking sufficient action to mitigate the effects of climate change. The Court held that Article 8 includes a right for individuals to effective protection by State authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life.

The decision is the first time the Court has ruled on Contracting States’ human rights obligations in relation to climate change. It could have far-reaching implications, sending strong signals to Contracting States, including the UK, to review their existing climate change mitigation regulations and measures in line with the Court’s findings, and may herald a new wave of litigation challenging States’ measures to address climate change on human rights grounds. Although Convention duties do not directly apply to the private sector, the decision will affect companies which are navigating increasing regulatory change as part of their own climate transition risk and may potentially face new litigation risk in some jurisdictions inspired by new human rights arguments. 

The complaint

The complaint was brought by a Swiss non-profit association of older women and four individuals (also members of the association) concerned about the effects of climate change – in particular global warming – on their lives, living conditions and health. The applicants argued that older adults, women and those with chronic diseases were at the highest risk of temperature‑related morbidity and mortality.  Having exhausted legal redress mechanisms in Switzerland, the applicants brought a complaint to the European Court of Human Rights. The applicants argued that the Swiss authorities had not taken sufficient steps to mitigate against climate change in breach of their Convention obligations. 

Whilst the Court dismissed the individuals’ applications as they did not meet the Court’s strict procedural thresholds to bring a complaint, the Court held that the association’s complaints did meet the necessary procedural requirements and that the Swiss authorities had breached their duties under Article 8 and Article 6(1).

Standing

The Court found that the individuals’ complaints were inadmissible as they did not satisfy the victim status criteria under the Convention. Individual applicants must show they are directly affected by the alleged violation. In the context of climate change, the applicants needed to demonstrate (a) a high intensity of exposure by the applicant to the adverse effects of climate change and (b) a pressing need to ensure the applicant’s individual protection. The Court held that the individual applicants did not meet the relevant threshold in this case.

Although the Court does not typically grant standing to associations, the Court held that as climate change is a common concern of humankind and there is a need to promote intergenerational burden-sharing, it was appropriate for the Court to allow associations legal recourse in the context of climate change, provided certain conditions were met. To put this into context, civil society organisations are increasingly being granted the ability to bring ESG claims before the courts in different jurisdictions, including under the EU Corporate Sustainability Due Diligence Directive and other legal frameworks.  To have standing in Convention climate complaints, associations must demonstrate their lawful establishment in the relevant State, pursuit of a dedicated purpose in line with their statutory objectives in defence of human rights and that they are qualified and representative to act on behalf of their members or other affected individuals. The Court held that in this case the applicant association had met the necessary requirements and had standing to act on behalf of its members. 

Article 8 – Right to respect for private and family life

The Court found that Article 8 of the Convention encompasses a right for individuals to effective protection by State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life. 

In this context, the Court held that a Contracting State’s main duty is to adopt, and to apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible future effects of climate change. Acknowledging States’ international climate change commitments under the United Nations Framework Convention on Climate Change and the Paris Agreement, and cogent scientific evidence, the Court held that Article 8 requires each Contracting State to undertake measures for the substantial and progressive reduction of their GHG emission levels, with a view to reaching net zero within, in principle, the next three decades. 

For such measures to be effective, public authorities must act in good time, in an appropriate and consistent manner. To be genuinely feasible and avoid a disproportionate burden on future generations, immediate action must be taken and adequate intermediate reduction goals set. Such measures should be incorporated into a binding regulatory framework at the national level, followed by adequate implementation. 

In this case, the Court found that Switzerland had breached Article 8 by not taking sufficient action to mitigate the effects of climate change. Although States have a wide margin of appreciation to determine the details of their domestic climate policies, the Court found there had been critical gaps in the process of putting in place the domestic regulatory framework in the relevant period (the Court could only consider facts up to May 2020, being the date of the final domestic court decision in the applicants’ case). Those gaps included a failure by Switzerland to quantify, such as through a carbon budget, national GHG emissions limitations. In addition, Switzerland had previously failed to meet its GHG emission reduction targets. The Swiss authorities had not acted in time and in an appropriate way to devise, develop and implement relevant legislation and measures in accordance with their positive obligations under Article 8.

The applicants also argued that their Article 2 right (right to life) had been violated. As the Court found that Article 8 applied, the Court decided it was not necessary to consider the complaint under Article 2. The Court noted, however, that the principles under Article 2 are, to a very large extent, like those under Article 8. 

Article 6(1) – Right to a fair trial (access to court)

The Court found that the rejection of the applicant association’s legal action in Switzerland, first by an administrative authority and then by the national courts (including on appeal), amounted to an interference with its right of access to a court. The Swiss courts had not provided convincing reasons as to why they had considered it unnecessary to examine the merits of the association’s complaints. The Swiss courts had failed to take into consideration the compelling scientific evidence concerning climate change and had not taken the complaints seriously. As there were no further legal avenues or safeguards available to the association or individual applicants or the association’s members, there was a violation of Article 6(1).  Notably, the Court emphasised the “key role which domestic courts have played and will play in climate-change litigation” and that it falls primarily on national authorities, including the courts, to ensure that obligations under the Convention are observed. 

Dissenting opinion

Notably, out of the 17-member Court, a partially dissenting opinion was expressed by UK judge, Judge Eicke. Whilst sharing the majority’s sense of urgency in the fight against climate change, the judge considered that the majority had gone beyond what it was legitimate and permissible for the Court to do within its competence. The judge considered that the majority had unnecessarily expanded the concept of standing and created a new right and duty under Article 8 (and possibly Article 2) in relation to climate change. The judge also raised concerns that the majority had given false hope that court litigation can provide “the answer”. The judge considered that not only will authorities have to assess and if necessary, design and adopt, new regulations and measures in line with the majority’s decision, but that there is a significant risk that authorities will now be tied up in litigation over the regulations and measures they have adopted or how they have been applied in practice.

Remedy

The Court’s decision is final and binding. Following the Court’s findings, Switzerland must now decide the measures to adopt to remedy the violations identified by the Court. Those measures will be supervised by the Committee of Ministers, a committee which aims to ensure Contracting States comply with the Court’s judgments. Due to the complexity and nature of the issues involved, the Court found it could not be detailed or prescriptive as to the measures Switzerland needs to implement to comply with the Court’s decision. The Court was not asked to decide if damages were payable to the applicants.

Impact of the decision

The Court’s unprecedented decision could have far-reaching implications for climate regulation and litigation across the public and private sectors. 

The immediate impacts are most likely to be felt in the public sphere. The decision sends strong signals to the 46 Contracting States to the ECHR across Europe, including the UK, that they should review their existing climate change mitigation regulations and measures. For example, the Court’s consideration of ‘embedded’ or imported consumption-based emissions may raise questions about the extent to which States should account for these in domestic laws and carbon budgets. In the case of Switzerland, whilst the Court has not spelt out what the State must do to remedy its violation, Switzerland will need to decide what steps to take to comply with the Court’s findings.

The decision, which is being heralded as a game changer by climate activists, could also provide impetus for a new wave of international and national litigation challenging public authorities’ approaches to climate change on human rights grounds in relation to Contracting States and beyond.  

Although the Convention is an international treaty, the decision will have implications for domestic courts. In the UK, Convention rights are enshrined into domestic law through the Human Rights Act and the English courts must consider Court judgments when determining questions concerning Convention rights. The English courts have so far maintained a strict line as to their limited role in determining challenges to UK Government climate change policies. It remains to be seen whether the English courts will be influenced by the Court’s findings, including the majority’s views on the central role played by domestic courts in the fight against climate change, particularly where human rights arguments are raised.

Importantly, the decision will also have implications for companies which, as part of managing their transition risk, must be prepared to navigate potential further regulatory changes. State authorities may impose clearer and harder obligations on companies in response to this decision and to limit the risk of potential future litigation challenging States’ measures to address climate change. There is also potential for suppliers of services to States to be expected to meet increased requirements through public procurement in future.  

The judgment may also embolden those behind the increasing number of strategic lawsuits brought against private sector actors, particularly those in high-emitting sectors, in connection with climate change. Even though Convention duties do not directly apply to the private sector, climate activists may seek, for example, to use the Court’s decision concerning States’ human rights duties to bolster arguments already being deployed before some courts around the scope of corporate climate obligations.