On 9 April 2024, the Grand Chamber of the European Court of Human Rights (“ECtHR”) delivered highly anticipated judgments in three important cases. The applicants in these cases argued that the European Convention on Human Rights (the “ECHR”) requires governments to take more action to address the harms caused by climate change. The ECtHR found a violation of human rights in one case but ruled that the other cases were inadmissible. Despite the mixed outcome, the ECtHR’s findings mean that governments must address climate change to ensure the protection of fundamental rights under the ECHR.

Background

The rights and obligations enshrined in the ECHR have been cited in environmental and climate litigation cases for many years. While the ECtHR has ruled that localised environmental harm breaches the ECHR – for example, pollution from an industrial plant in Cordella v Italy – the question of how the effects of climate change should be understood in relation to ECHR rights remained a contested issue.

Over several years, claimants in domestic courts have sought to rely on Articles 2 (the right to life) and 8 (the right to respect for private and family life), and the doctrine of positive obligations (the duty on States to take active measures to prevent rights breaches), to argue that national governments were obliged to do more to prevent climate change. In bringing these cases, claimants have had to challenge arguments that climate change is a collective action problem and demonstrate that there is a sufficient (factual and legal) causal link between climate-associated harm and government inaction.

This was the essence of the arguments in the three cases in Strasbourg. The ECtHR agreed to expedite the cases by granting them priority status and referring them to the Grand Chamber (a move that is reserved for only “exceptional cases”). It also decided to address the issues of admissibility and substantive merits together, in recognition of these cases’ importance:

• Verein KlimaSeniorinnen Schweiz and Others v Switzerland was brought by four individuals and an association of elderly Swiss women against Switzerland;
• Carême v France involved a French politician bringing a claim against France; and
• Duarte Agostinho and Others v Portugal and 32 Others saw six young people argue that all Council of Europe States (excluding Ukraine), including the UK, were failing to take sufficient action against climate change and were therefore breaching their rights. Save the Children International, represented by Hausfeld, intervened in Duarte Agostinho in May 2021 to provide insight into the particular vulnerability of children in the face of climate change and its effects.

The Judgments

Whilst each case was separately heard in 2023, the ECtHR issued judgments in respect of all cases on the same date, given the overlapping themes.

In Verein KlimaSeniorinnen, the ECtHR ruled that the individuals’ claims were inadmissible as they did not meet the ‘victim-status’ threshold but – in a finding that may be important for future cases – the association was found to have standing given the way in which climate change is a common concern. The ECtHR went on to find a breach of Article 8, holding that:

• Article 8 encompasses “a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life”;
• States must therefore adopt and apply relevant measures to mitigate the effects of climate change which – particularly in light of international commitments such as the Paris Agreement – included measures aimed at preventing greenhouse gas emissions; and
• Switzerland had not instituted a sufficient domestic framework (such as the inception of carbon budgets) and had previously missed emissions targets previously, and this constituted a breach of Article 8.

A dissenting opinion was expressed by one of the 17 judges, who disagreed on both the issues of admissibility and merits on the basis that the majority’s approach to the ECHR had gone beyond “the permissible limits of evolutive interpretation”.

By contrast, both Duarte Agostinho and Carême were ruled as inadmissible and so the ECtHR did not provide a ruling on the merits of these cases. In the former, the ECtHR was unwilling to find that a claim by Portuguese applicants was admissible against other States: this would have required extending the extraterritorial jurisdiction of those other States which could not be justified, even though the ECtHR recognised the particular and significant threats that climate change represents. As regards the claim against Portugal, the ECtHR found that the applicants had jurisdiction but failed to exhaust domestic remedies before applying to Strasbourg for declaratory relief.

The applicant in the third case had been the mayor of the Grande-Synthe municipality, which faced particular risks associated with climate change including a higher risk of flooding. However, he no longer lived in Grande-Synthe and was found not to have victim status such that he could bring his claim.

Comment

These judgments are seminal as they represent the first climate change decisions by the ECtHR. They will shape the future of climate action and litigation. Carême and Duarte Agostinho were found to be inadmissible but the ECtHR nevertheless made important observations about the existential threat of anthropogenic climate change and the control that States have over greenhouse gas emissions in their jurisdiction

The ECtHR’s judgment in Verein KlimaSeniorinnen is likely to have an even more significant impact. Switzerland is now required by the ECtHR to take action to address its breach of Article 8. More broadly, the finding on standing for relevant organisations will assist in prospective claims across Europe and the ruling on Article 8 demonstrates that there is a minimum level as regards climate policy (and the effectiveness of such policy) below which States cannot fall without breaching the ECHR. However, what that means in practice for States, domestic and international policy, future litigants, and, ultimately, the planet remains to be determined, likely by both politicians – the Council of Europe’s Committee of Ministers will assess Switzerland’s response, for example – and future legal actions.

Author: David Lawne, Luke Grimes and Patrick Kenny