October 22, 2021
By Nele Schuldt
The case of Klimaseniorinnen v. Switzerland has attracted much attention since it was lodged before the European Court of Human Rights (European Court, Strasbourg Court) in late November 2020. The applicants, an organization of elderly women, alongside four individual elderly women, alleged that the Swiss government had, firstly, on account of inadequate climate policies, violated their rights to life and private life under, respectively, Articles 2 and 8 of the European Convention on Human Rights (ECHR, Convention). Secondly, the women and the organization claimed that their rights to a fair trial pursuant to Article 6 of the Convention had been infringed on account of the allegedly arbitrary dismissal of their case by the Swiss Federal Supreme Court. Thirdly, the applicants submitted that the refusal to deal with the merits of the case before the Swiss domestic courts led to a violation of the right to an effective remedy as protected under Article 13 of the Convention. On 25 March 2021, the Court communicated the case to the Swiss government and afforded priority status to the case. Switzerland was due to submit their response by 16 July 2021.
Against this background, the Human Rights Centre at Ghent University wished to draw attention to three main aspects in its third party intervention: i) The emerging European, as well as global, trend amongst judicial and quasi-judicial bodies recognising climate change as a human rights issue; ii) The natural progression from the existing ECHR case law to expand to issues of climate change, including taking into account the intersectional nature of the Klimaseniorinnen’s claim; iii) The complexity of evidentiary questions in the light of climate litigation, and the potential application of a lowered burden of proof for the applicants through the use of well-established international environmental principles, such as the precautionary principle.
As of 1 July 2020, around 1,550 climate change cases were pending before domestic and international courts in 38 jurisdictions, according to the United Nations Environment Program (UNEP). Before international human rights bodies, however, climate litigation represents a relatively novel field. Most recently, however, the Inter-American Court was called on to determine jurisdictional, procedural and substantive questions in the light of member states’ obligations in the context of human rights and the environment. Just months before the Klimaseniorinnen case was lodged before the Strasbourg Court, the case of Duarte Agostinho and Others v Portugal and 32 other Member States, also became the first case in which the European Court was explicitly requested to adjudicate on climate change issues in light of the Convention and relevant international obligations.
As interveners in the Klimaseniorinnen case, our aim was to demonstrate that on both the domestic and international level, climate change has been recognised as an increasingly growing threat by judicial and quasi-judicial bodies. In this regard, we pointed out that the interdependence between the environment and human rights was expressly acknowledged in the aforementioned 2017 Inter-American Court’s Advisory Opinion. The Advisory Opinion also acknowledged an autonomous right to a healthy environment, which was viewed by the Inter-American Court as a fundamental precursor for the existence of humankind. The Inter-American Court further set out several obligations for states: States carry a duty to ‘respect’ and ‘ensure’ the rights to life and personal integrity as interpreted in the light of international environmental law (paras 115-116). States have been found to owe both positive and negative obligations in this regard: States must ‘refrain from (i) any practice or activity that denies or restricts access, in equal conditions, to the requisites of a dignified life […] and (iii) unlawfully polluting the environment in a way that has a negative impact on the conditions that permit a dignified life for the individual.’ States must further ‘take all appropriate steps to protect and preserve the rights to life and to integrity […]’, which includes the regulation, supervision and monitoring of activities of third parties that cause environmental damage. (paras 118-119)
At the United Nations level, 2019 marked the year in which five UN human rights treaty bodies issued a joint statement on the significant risks to the enjoyment of human rights as protected under various UN treaty bodies’ Covenants and Conventions. The joint statement explicitly mentioned the potential threat to individuals’ rights to life as a result of climate change. 2020 saw the first climate decision by the Human Rights Committee in the case of Teitiota v New Zealand, recognizing that ‘without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant […]’ (para 9.11) The Human Rights Committee is currently also in the process of determining its next climate decision against Australia. Further complaints concerning inaction of governments in the context of climate change are pending before the UN Committee on the Rights of the Child, as well as several UN Special Rapporteurs. Although initially, the international stage did not seem to provide a successful avenue for climate litigation, in recent years, it has become evident that the judicial and quasi-judicial courts have increasingly displayed a heightened sensitivity for the severe threats that climate change poses to human rights.
Equally, the domestic stage, particularly in the Council of Europe Member States, has proven fruitful for climate litigation. Domestic courts have even started to explicitly spell outstates’ human rights obligations in the context of climate change.
In this respect, our third party intervention mentioned several domestic climate cases, notably URGENDA, which directly drew on the Netherland’s human rights obligations under the ECHR. The TPI further drew attention to the Dutch Supreme Court explicit statement ‘a country cannot escape its own share of the responsibility to take measures by arguing that compared to the rest of the world, its own emissions are relatively limited in scope and that a further reduction of its own emissions would have very little impact on a global scale. The State is therefore obliged to reduce greenhouse gas emissions from its territory in proportion to its share of the responsibility.’(URGENDA summary of the decision) Similarly to URGENDA, the recent Belgian Klimaatzaak case relied on state’s positive obligations under Articles 2 and 8 ECHR. As recently as March 2021, the German Federal Constitutional Court ruled on young peoples’ challenge of the Federal Climate Protection Act, recognizing that the effects of climate change and the impact of restrictions required to mitigate climate change raise human rights issues. The German Constitutional Court, as well as the Belgium Court of First Instance in Brussels, equally recognised the individual state’s responsibility, despite climate change stemming from the cumulative effects of all emissions across the globe. Consequently, the most recent domestic decisions of Council of Europe Member States’ courts demonstrate a consistent line of argument, whereby the state cannot escape responsibility for human rights violations as a result of failing to adhere to their climate obligations and to curb emissions.
The momentum amongst Council of Europe Member States is growing towards a judicial recognition of state’s obligations, including human rights obligations, in the face of the growing threat of climate change. With respect to the imminence of impending harm from climate change, national courts have argued that state’s obligations do not cease to exist despite uncertainties as to when the invoked risk will materialise. To sum up, therefore, the recognition that the enjoyment of a number of human rights are curtailed as a result of climate change has been recognised by international and national jurisdictions. A number of these judicial and quasi-judicial bodies have also started spelling out state’s human rights obligations, from which the Strasbourg Court can draw inspiration as it is tasked with dealing with questions concerning climate change for the very first time.
The Court has been presented with numerous opportunities to rule on the threat of environmental damage on individuals’ exercise of certain Convention rights. Since the Court has already recognised the potentially adverse impact on human rights of environmental disasters and degradation – brought on by both anthropogenic and natural causes – we argued that climate change should, a priori, be encompassed under the umbrella of the Convention, as it presents a much longer-lasting, forceful and potentially devastating threat than the issues which were previously adjudicated upon.
Wealso pointed out that a number of international human rights bodies have drawn on the case law of the Strasbourg Court to advance climate litigation claims. For example, the Inter-American Court drew inspiration from the jurisprudence of the Strasbourg Court to emphasise the link between environmental degradation and its potential to infringe on the human rights of individuals (para. 51). The UN Human Rights Committee in Teitioata similarly cited environmental damages case law of the European Court (para 9.5), as did the European Committee of Social Rights, when concluding that the right to the highest attainable standard of health included a right to a healthy environment. Since the European Court has been recognised to acknowledge the interconnectedness between human rights and the environment, the logical next step would be for the Court to extend this interpretation to the growing threat of climate change.
The European Court has shown even more engagement in the protection of vulnerable categories of persons, including the rights of elderly people. Climate change has been recognised as affecting certain marginalised groups more than the rest of the population. One of these categories constitutes the elderly, with a most recent global call from 200 medical journals urging states to limit global temperature increases as ‘heat related mortality among people aged over 65 has increased by more than 50% (…)’. Since women are also viewed as more vulnerable to climate change than men, the intersectional nature of the plight faced by elderly women in an increasingly hostile environment should be recognised accordingly by the Court.
The third limb of arguments presented to the Court concerns evidence and its link to the precautionary principle. According to the UNFCCC, the precautionary principle stipulates that ‘[p]arties should take precautionary measures to anticipate, prevent, or minimise the causes of climate change and mitigate its adverse effects. When there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures […].’ Drawing on the Court’s case law in Tatar v Romania, as well as international human rights bodies’ assessments, i.e. the Inter-American Court in its 2017 Advisory Opinion and the Dutch Supreme Court in URGENDA, we emphasised that the precautionary principle may prove useful: it can be utilised to assess whether effective and proportionate measures have been adopted to prevent the risk of serious and irreversible harm, even in the absence of scientific certainty. Although the anthropogenic nature of climate change is incontrovertible, the precise causal links are often difficult to establish, with multiple actors on a global scale contributing to greenhouse gas emissions. The burden of proof, therefore, should not be impossibly high on the applicant when establishing a causal link between the risks and effects of a certain activity (or inactivity) on part of the state and the alleged violation of human rights. The well-known potential and actual threat of climate change, instead, should animate states sufficiently to act in accordance with the principle of precaution. In Tatar v Romania, the Court aptly reflected on causal probability, and concluded that the existence of a serious and substantial risk to the applicant’s health and wellbeing sufficed to engage positive obligations on part of the state (paras. 105-107). In the light of the findings of the aforementioned judgments, we invited the Court to lower its burden of proof on the applicants and rely on the precautionary principle to determine whether the respondent state had fully observed its duty of preventing serious harm, even in the absence of absolute scientific certainty.
In conclusion, a three-pronged argument was presented to the Court in this third-party intervention. Firstly, it was argued that an emerging trend is visible at the domestic level for Council of Europe Member States, as well as on the international stage: More and more states are being held accountable by judicial organs to uphold their climate commitments, especially in the light of the grave dangers attached to a continuously warming planet and its impact on human rights. Secondly, it was demonstrated that the European Court’s own case law has established the groundwork, by acknowledging the potentially adverse impact of environmental degradation on human rights. The argument was made that, a priori, climate change should also fall under the Convention’s protection, as the projected (and current) effects of climate change are far worse than ‘regular’ environmental degradation. The Court can also draw on its case law protecting vulnerable categories of persons, under which women fall, especially those of old age. The intersectional nature of the Klimaseniorinnen’s plight should therefore duly be recognised. Lastly, the difficulty of presenting evidence in climate litigation was highlighted. It was submitted that the well-established principle of precaution should serve to lower the burden of proof on the applicants, whilst ensuring that states cannot avoid responsibility for inactivity in climate change mitigation in the light of absolute scientific certainty. With Klimaseniorinnen, the Court is presented with the unique opportunity to advance its case law and to adjudicate on one of the gravest threats that the planet – and by extension humans – face.