Human rights breaches can arise from climate inaction, ECHR rules

David Thorneloe of Pinsent Masons was commenting after the court held that the rights individuals enjoy under Article 8 of the European Convention on Human Rights – which guarantees the right to respect for private and family life – extend to a right to be effectively protected by states against the serious adverse effects of climate change on lives, health, wellbeing and quality of life.

While it did not rule definitively on the point, the court further suggested that individuals’ right to life, provided for under Article 2 of the Convention, could also be engaged by shortcomings in state action to address climate change.

Thorneloe said: “This is a landmark judgment that will impact on the way climate change cases are litigated in future. However, its immediate impact is limited. This is because this case was focussed on the extent to which state signatories to the Convention need a plan to address climate change and, at a high level, are taking sufficient steps to implement those plans. It does not go further in prescribing specific actions governments must take in respect of the climate emergency – indeed, the court recognised that governments have a wide degree of discretion in how they achieve greenhouse gas (GHG) emissions in line with international climate targets.”

“That said, the ruling will encourage climate activists to pursue human rights claims pertaining to perceived shortcomings in state efforts to combat the effects of climate change, knowing that courts apply a stricter level of scrutiny to government action impacting on human rights. It is possible, therefore, that this judgment will pave the way for further case law to emerge that could require more targeted actions by governments in the future,” he said.

Hear Valérie van den Berg and David Thorneloe discuss this story on The Pinsent Masons podcast here or wherever you get your podcasts.

The court made the ruling in a case brought by a Swiss climate association, Verein KlimaSeniorinnen Schweiz, that represents more than 2,000 older women, together with four specific members of the group who have raised concerns that the Swiss government has not taken sufficient action to protect them from the consequences of global warming on their living conditions and health. The individuals’ claims before the Swiss courts had previously been dismissed.

Courts in the Netherlands and UK have previously considered climate-related claims framed as breaches of human rights legislation.

In the Netherlands, the country’s Supreme Court held in 2019 that, among other things, the government was acting unlawfully because it was contravening its duty of care under Articles 2 and 8 of the European Convention on Human Rights by failing to pursue a more ambitious GHG reduction target for the end of 2020. However, the court emphasised that it does not necessarily follow that any failure to actually meet a climate target that has been set means the Dutch government will have failed to have met its human rights obligations.

In the UK, in a case in which the High Court in London examined whether the UK government’s October 2021 ‘net zero’ strategy was lawful, the court considered similar human rights arguments raised by climate activists. In the process, it reviewed the Dutch ruling and declined to follow it on the basis that it went further than for the case law of the European Court of Human Rights, as it stood at that time. It dismissed the human rights-related elements of the claims, though it upheld the activists’ complaint that the net zero strategy was unlawful for separate reasons.

In the latest case raised before it, the European Court of Human Rights determined that the complaints raised by the four women as individuals were inadmissible, on the basis that they could not demonstrate that they were personally and directly affected by governmental action or inaction. However, it held that Verein KlimaSeniorinnen Schweiz had standing to bring its case on a more general basis representing the interests of those directly affected, concluding that it was “in the interests of the proper administration of justice” to hear its case.

In rejecting the individuals’ claims to “victim status”, the European Court of Human Rights provided an insight to requirements that others wishing to bring human rights-related climate claims against states would need to meet in respect of causation – the principle that requires a link to be established between the event that resulted in harm and the cause of that event.

The court said: “The first dimension of the question of causation relates to the link between GHG emissions – and the resulting accumulation of GHG in the global atmosphere – and the various phenomena of climate change. This is a matter of scientific knowledge and assessment. The second relates to the link between the various adverse effects of the consequences of climate change, and the risks of such effects on the enjoyment of human rights at present and in the future. In general terms, this issue pertains to the legal question of how the scope of human rights protection is to be understood as regards the impacts arising for human beings from an existing degradation, or risk of degradation, in their living conditions.”

“The third concerns the link, at the individual level, between a harm, or risk of harm, allegedly affecting specific persons or groups of persons, and the acts or omissions of state authorities against which a human rights‑based complaint is directed. The fourth relates to the attributability of responsibility regarding the adverse effects arising from climate change claimed by individuals or groups against a particular state, given that multiple actors contribute to the aggregate amounts and effects of GHG emissions,” it said.

The court also set out high-level expectations in relation to how governments can ensure they respect Article 8 rights in the climate context.

“Effective respect for the rights protected by Article 8 of the Convention requires that each contracting state undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades,” the court said. “In this context, in order for the measures to be effective, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner.”

“Moreover, 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. Such measures should, in the first place, be incorporated into a binding regulatory framework at the national level, followed by adequate implementation. The relevant targets and timelines must form an integral part of the domestic regulatory framework, as a basis for general and sectoral mitigation measures,” it said.

The court also provided further guidance in its ruling on when states can be said to have met their “positive obligations” to address climate change within their “margin of appreciation”.

Relevant factors to be considered in this respect include whether the state has specified timelines for achieving carbon neutrality and overall carbon budgets or equivalents, in line with national or global climate mitigation commitments; whether it has set “capable” intermediate GHG emissions reduction targets and pathways, such as by sector; and whether it can provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets.

Other factors will include whether states have kept GHG reduction targets updated in line with the best available evidence; and acted in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures, it said.

The court said the factors are to be considered in the round, so a shortcoming on one point would not necessarily entail an overall failure by a state in its obligations.

In the case before it, the court considered that the Swiss government had failed to meet its positive obligations in respect of Article 8 rights.

“There were some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations,” the court held. “Furthermore … the state had previously failed to meet its past GHG emission reduction targets. By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, [Switzerland] exceeded its margin of appreciation and failed to comply with its positive obligations in the present context.”