Yesterday’s judgment on climate change “may well have achieved exactly the opposite effect to what was intended”, the UK’s judge at the European Court of Human Rights said in a partly dissenting opinion.
Judge Eicke accused his judicial colleagues of going beyond what was legitimate and permissible for them to do. They had tried to run before they could walk, he believed.
Eicke was worried that the 16 judges who held that Switzerland had breached the human rights of older Swiss women had given them false hope. In his view, the courts could not provide an answer to the problems of climate change and litigation would not speed up the measures that were needed.
There was a significant risk, he added, that the new rights and obligations created by the court’s majority would prove an unwelcome and unnecessary distraction for the national and international authorities. They would detract attention from current international negotiations.
Not only will those authorities now have to assess and, if considered necessary, design and adopt… new “regulations and measures capable of mitigating the existing and potentially irreversible future effects of climate change” but there is also a significant risk that they will now be tied up in litigation about whatever regulations and measures they have adopted… or how those regulations and measures have been applied in practice.
Eicke concluded:
While I understand and share the very real sense of and need for urgency in relation to the fight against anthropogenic climate change, I fear that in this judgment the majority has gone beyond what it is legitimate and permissible for this court to do and, unfortunately, in doing so may well have achieved exactly the opposite effect to what was intended.
As I explained in a preview last week, the case was brought by a group of Swiss women, mostly in their seventies or older, who are backed by Greenpeace. To give themselves legal standing, they formed an association called KlimaSeniorinnen – meaning senior women for climate protection.
The claimants argued that their demographic group was particularly vulnerable to climate-induced heatwaves. One told me she couldn’t leave home for about three weeks in the summer.
The court held that their association had the necessary standing to bring a claim — although the individual claimants did not.
By a majority of 16 votes to one, the court found that Switzerland had breached article 8 of the human rights convention, which protects the right to private and family life. The judges decided that article 8 encompasses a right to effective protection by the state authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life.
While recognising that states enjoy wide discretion, the court held that the Swiss government had not done enough to devise, develop and implement relevant measures in this case.
The majority also found a breach of article 6, which protects access to a court. They held that the Swiss courts had not provided convincing reasons for considering it unnecessary to examine the merits of the association’s complaints. Those courts, they said, had failed to take into consideration the compelling scientific evidence concerning climate change and had not taken the complaints seriously.
The human rights judges concluded yesterday that Switzerland was better placed than the court to decide what measures were now needed. These would be supervised by the committee of ministers, representing all 46 Council of Europe member states.
Other cases
The court threw out two other cases.
One was brought by a resident and former mayor of Grande-Synthe, a suburb of Dunkirk on the channel coast of France. Damien Carême argued that his home and the surrounding areas would be under water by 2040 if France failed to meet its greenhouse gas reduction targets.
His claim was declared inadmissible because he had left France and now lives in Brussels.
The most ambitious case was brought by six Portuguese nationals now aged between 14 and 25. They suffer from anxiety; four say their health has been damaged by forest fires that have broken out in Portugal each year since 2017 as a direct result of global warming. Their claim was brought against Portugal and more than 30 other European states, including the United Kingdom.
The Strasbourg judges declared their claim inadmissible because they had not previously taken legal action in the national courts.
Analysis
For once, the description “landmark” is appropriate. The KlimaSeniorinnen are the first applicants to win a case of this kind at the European Court of Human Rights and credit must go to their counsel Jessica Simor KC. Leading counsel from England and Wales were also instructed, for both sides, in the Portuguese case.
On the other hand, it was clear that the court, currently led by the distinguished Irish judge Siofra O’Leary, was determined to develop the law in this area if it possibly could. Why else would the court’s grand chamber have held oral hearings in two cases that were clearly inadmissible?
Carême’s claim failed because he had left France after his election to the European parliament in 2019. The court should have known this before the hearing. It certainly knew that the Portuguese case did not meet the court’s basic requirements.
The KlimaSeniorinnen case was successful only because the applicants were advised to form an association. As the court explained yesterday, individual applicants would have had to show they were personally and directly affected by governmental inaction on climate change. They did not qualify as victims under article 34 of the human rights convention.
The court does not usually grant general public-interest claims. But it decided yesterday, as it explained in a press summary,
that the special feature of climate change as a common concern of humankind and the need to promote intergenerational burden-sharing rendered it appropriate to make allowance for recourse to legal action by associations in the context of climate change…
The right of an association to act on behalf of its members or other affected individuals within the jurisdiction concerned is not subject to a separate requirement that those on whose behalf the case has been brought would themselves meet the victim-status requirements for individuals.
In the circumstances of the present case, the court found that the applicant association fulfilled the relevant criteria and had the necessary standing to act on behalf of its members in this case.
This seems more than a little contrived. As Eicke said, his fellow judges had “unnecessarily expanded” the concept of victim status under article 34. They had created a new right to “effective protection by the state authorities from serious adverse effects on their life, health, well-being and quality of life arising from the harmful effects and risks caused by climate change”.
They had also imposed a new duty on Council of Europe member states “to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible future effects of climate change”.
None of these requirements, said Eicke, had any basis in article 8 or any other article of the convention.
Clearly, the court has the last word on what the convention means. But, said Eicke,
this ultimate interpretative authority comes with immense responsibility; a responsibility which, in my view, is reflected in the court’s normally careful, cautious and gradual approach to the evolutive interpretation of the convention under what is frequently described as the “living instrument” doctrine.
Unfortunately… I have come to the conclusion that the majority in this case has gone well beyond what I consider to be, as a matter of international law, the permissible limits of evolutive interpretation.
Comment
In practice, the judgment may not make a great deal of difference. The court’s message to Switzerland is “do something but we can’t tell you what”.
That now applies to all Council of Europe members and we can now expect to see litigation in the various courts of the United Kingdom. I don’t suppose that future applicants will heed Eicke’s warning that such claims will be counter-productive. But there will be plenty of scope for national courts to decide that the states concerned are doing what they reasonably can.
Above all, the ruling will now give further ammunition to those who think the UK should now leave the European Convention on Human Rights. Only the German-born British judge seems to have thought this through.
Not sure about this; my warm heart is doing its best to drag my sometimes too complaisant mind into rejoicing over this “cutting edge” ruling. Anything -almost anything- that serves to galvanise individual states into more urgent and bold action is at first (and second) blush valuable. As a (supposedly) retired criminal defence quasi-Rumpolesque hack, these are exotic and cerebral waters for me to be swimming (floundering?) in but we are-most of us, surely?- losing sleep over the stark, “doomsday” evidence of global warming confronting us every day. I for one would devoutly wish this judgment to jolt our government into more urgent and altruistic action and all of us into at least urgent representations to government to do more. I do however fear, like Joshua, that it may provide the “little England” contingent with yet another specious ground for demanding that we quit - whatever that would actually mean- the jurisdiction of this “nasty, foreign” Court.
ECHR tells states what they can legislate, it seems
Well done, Judge Eicke