December 03, 2021
by Jenny Sandvig, Hannah Cecilie Brænden and Peter Dawson
In one of the first climate cases to be decided by the European Court of Human Rights (ECtHR), the European Network of National Human Rights Institutions (ENNHRI) has submitted a joint third-party intervention. The intervention, a first by national human rights institutions (NHRIs) in an international climate case, highlights the urgency of reducing greenhouse gas emissions to avert dangerous climate harm in order to safeguard the interests of current and future generations.
The case is brought by a group of older women and their association KlimaSeniorinnen against Switzerland (discussed here). They allege that the State is not doing enough to cut greenhouse gas emissions, thereby exposing them to life-threatening heatwaves in violation of the right to life and the right to private and family life under Articles 2 and 8 of the European Convention on Human Rights (ECHR). The applicants also allege a violation of the right to a fair trial (Article 6) and the right to an effective remedy (Article 13), because the Swiss courts dismissed their claims without an assessment of the merits. Given the disproportionate risk posed by climate-induced heatwaves to elderly women, the case could in principle also raise issues under Article 14 (see here). The Court has communicated the case to Switzerland with priority under Rule 41.
Summary of the Intervention
ENNHRI’s intervention is set out in five parts. The first part argues that while climate change is caused by cumulative global emissions, individual States are responsible for climate harm caused by emissions under their effective control. The second part argues that potential and representative victimhood under Article 34 in climate cases would ensure effective rights protection aligned with ECtHR case law. The third part argues that Articles 2 and 8 apply to climate harm and oblige States to cut greenhouse gas emissions rapidly along a realistic and specified reduction pathway to reach net zero as soon as possible. A fourth and fifth part, which will not be discussed further here, argue that Articles 6 and 13 might be impaired if procedural limitations effectively preclude judicial oversight in climate cases aiming to protect the right to life and physical integrity now, before the carbon budget to limit irreversible warming above 1.5°C is exceeded.
Three Main Arguments
This blog post highlights three of the intervention’s main arguments regarding i) individual state responsibility, ii) potential and representative victimhood, and iii) the right to life and physical integrity.
i) Individual State Responsibility
It has been argued that individual States cannot be held responsible for climate change, since no State can avert climate change on its own. The ENNHRI intervention refutes this argument, on three grounds.
First, it recalls that under international law, a State’s responsibility for an internationally unlawful act is not diminished or reduced by the fact that other States are also responsible for the same act (see here).
Second, it recalls that a violation of the ECHR may be attributable to more than one State and factors that are partly outside the respondent State’s jurisdiction (Andrejeva, § 56). Moreover, State responsibility under Article 2 of the ECHR may be engaged where the State had a “real prospect of […] mitigating the harm”, even in instances where the harm could have occurred regardless (Bljakaj, § 124).
Third, emerging national jurisprudence from Europe, the Americas, Asia and Australia shows that individual States may be held accountable for the harm caused by their emissions or policies contributing to the accumulation of atmospheric concentrations of greenhouse gases. For instance, the German Constitutional Court has held that even though Germany is “incapable of halting climate change on its own”, it cannot “evade its responsibility” by pointing to greenhouse gas emissions in other States. The Federal Court of Australia, in a judgement subject to appeal, found that a contribution of 100 Mt CO2 in exported coal emissions constituted a “reasonably foreseeable” risk of death or personal injury to Australian children alive today, since “even an infinitesimal increase in global average surface temperature” above 2°C could trigger a catastrophic “tipping cascade” leading to a 4°C warmer “hothouse Earth”. These holdings are based on the best available science, with the Intergovernmental Panel on Climate Change’s (IPCC) noting that “every tonne of CO2 emissions adds to global warming”, increasing changes in extremes and the risk of tipping points.
ii) Potential and Representative Victimhood Regardless of the Prevalence of Climate Harm
A central question in the KlimaSeniorinnen case is whether individual applicants can bring a complaint over emissions-induced heatwaves which pose a generalised risk to the life and health of everyone. States will certainly argue that Article 34 does not allow actio popularis. ENNHRI asserts, however, that actio popularis does not exclude judicial review of potential violations simply because of their prevalence. Indeed, the ECtHR has reviewed complaints of a general nature, for instance from individuals residing in regions where all residents were equally exposed to pollution (Cordella §§ 100-109; Di Sarno § 81; Okay § 66) or applicants concerned about secret surveillance measures that would potentially affect the entire population of States (Centrum for Rättvisa §§ 166-167; Big Brother Watch §§ 467-472). As noted by the German Constitutional Court, “[t]he mere fact that very large numbers of people are affected does not exclude persons from being individually affected in their own fundamental rights”.
People are already individually and directly affected by climate harm at the current level of 1.1°C of warming, as evidenced by the deadly emissions-attributed floodings and extreme heatwaves in Western Europe in recent summers. More than 70.000 lives were cut short due to extreme heat in Europe in 2003, while nearly 600 lost their lives in unprecedented heat in Western Canada last summer which would have been “virtually impossible without human-caused climate change”.
A more difficult question is whether individuals or associations can lodge complaints to the ECtHR today over future risks of climate harm. The Court has previously dismissed applications concerning “mere suspicions or conjectures”, requiring “reasonable and convincing evidence of the probability of the occurrence of a violation” (Asselbourg p. 7). ENNHRI argues that the latent future risk of climate harm satisfies this criterion, as the risk of future harm already exists and is not merely hypothetical. As noted by the UN Human Rights Committee in a case regarding an applicant from an island in Kiribati threatened by emissions-induced sea-level rise, the “risk of being affected is more than a theoretical possibility”, it is a “real predicament” (Teitiota, para. 8.5). Given the probability of widespread climate harm in Europe as established by the IPCC’s Sixth Assessment Report, ENNHRI argues that any person within the jurisdiction of the Contracting States should be afforded standing as they are “potentially at risk” of climate change harm (compare inter alia Centrum for Rättvisa, § 167). At the very least, persons belonging to a “class of people who risk being directly affected”, such as children, indigenous people, the elderly and women, should qualify as potential victims (see inter alia Burden § 34). Since individuals would be left without an effective remedy against the dangers of warming above 1.5°C once the remaining carbon budget (400 Gt CO2) is depleted and dangerous climate change is irreversibly locked in, potential victimhood should be accepted within the limited time frame available to ensure effective rights protection.
Moreover, while the Court has previously dismissed complaints from associations that are not themselves directly affected by an alleged violation, ENNHRI argues that the Court should exceptionally allow representative complaints in the context of climate harm. The rationale for rejecting complaints from associations on the basis that there are “adult persons with full legal capacity to act” who can “lodge complaints with the Court in their own name” (Identoba § 45) does not necessarily apply with equal force here, since those most threatened by climate-induced risks to life and physical integrity are children (and future generations) without legal capacity to act now, or elderly persons whose age-specific interest is perishable. Allowing representative complaints would thus ensure that long-term structural climate harm which is detrimental to protected fundamental individual interests does not evade the Court’s supervision. Representative actions by environmental associations are also considered common ground in Europe (Gorraiz Lizarraga § 38).
iii) The Right to Life and Physical Integrity
The key question in KlimaSeniorinnen is whether Switzerland is obliged under Articles 2 and 8 to make higher emission cuts, both historically (1990-2020) and in the future (2030, 2050). Contrary to the Dutch Supreme Court and the German Constitutional Court, the Swiss Administrative Supreme Court found that the right to life and physical integrity was inapplicable to climate change since global warming above 1.5°C would not be reached before 2040, and the limit of “well below 2°C” would be reached at a “later time”. According to the IPCC, however, warming will likely reach 1.5°C already by 2030, even under moderate emissions scenarios.
ENNHRI’s intervention recalls that the primary positive obligation under Article 2 applies to any activity in which the right to life “may be at stake” (Tanase § 135). Since emissions-induced climate change is inherently dangerous, this primary obligation “to adopt appropriate measures for the protection of people’s lives” applies a fortiori (ibid).
Moreover, ENNHRI argues that the secondary obligation under Article 2 to take preventive operational measures also applies, since the risk of dangerous climate change poses an undeniable “serious”, “real and immediate” risk to life (see Tanase § 136). The intervention recalls that the Court does not interpret the term immediate “so narrowly as to require a State to wait for disaster to strike before taking measures to deal with it” (A § 177), but applies the criterion in a “flexible manner”, considering whether the risk is foreseeable (Kurt § 176). Similarly, Article 8 applies to exposure of future environmental risks with a “sufficiently close link” to the enjoyment of home, private or family life, such as foreseeable hypothetical risks that “might materialise only in twenty to fifty years” (Taskin, §§ 107, 113), as well as risks of a sudden deterioration (Hardy and Maile §§ 188–189).
As noted above, actual levels of emissions-induced warming (1.1°C) already represent a serious threat to life and physical integrity. Moreover, it is increasingly recognised that limiting warming to 1.5°C is the critical threshold beyond which catastrophic and irreversible tipping points would accelerate (IPCC AR6 SPM p. 19-24, CP.26 Glasgow Climate Pact (AUV) para. 16). Given the inertia in climate systems, urgent emission cuts are required to avoid depleting the 1.5°C carbon budget (ibid, para. 17). The latent risk of warming above 1.5° C is thus imminent and foreseeable now. This insight is reflected in emerging national jurisprudence, and interpretations by the UN Human Rights Committee. In line with these developments, ENNHRI argues that the positive obligation to take “appropriate measures” to avert risks to life and health under Articles 2 and 8 requires States to cut emissions rapidly to net zero. In addition, States may have a duty to adapt to unpreventable or incurred climate change, but, as noted by the German Constitutional Court, it would be “completely inadequate” to rely on adaption alone (para 157).
Certainly, States are afforded a margin of appreciation in environmental cases. ENNHRI, however, interprets the margin to be narrower with regard to greenhouse gas emissions compared to natural hazards because climate change is a “man-made” existential threat to human lives and civilisation “susceptible to mitigation” (Budayeva §§ 135, 137). Moreover, the principle of intergenerational equity could also narrow the margin of appreciation. It is recalled that depletion of the limited carbon budget today will necessarily result in infringements on future rights by unilaterally offloading the burden to cut emissions on younger generations while locking in dangerous climatic changes (Neubauer). Similarly, the ECtHR’s own reservation against imposing an “impossible or disproportionate burden” on the Contracting States (Budayeva, § 135) could warrant strict scrutiny of mitigation pathways today, to avoid imposing an increasingly impossible or disproportionate burden to cut emissions on States in the near future. Accordingly, States should be afforded a margin of appreciation in the choice of means to reduce emissions, but not in the minimum rate of emission cuts necessary to avoid dangerous climate change.
In determining the minimum rate of emission cuts necessary to mitigate threats to protected rights, the Court may rely on best available science and specialised international norms, binding or non-binding (Demir and Baykara §§ 69–86). As noted by the Dutch Supreme Court, the common ground reflected in the IPCC’s reports and the Paris Agreement, therefore informs the obligations under Articles 2 and 8. It is now common ground, recognised by all States, that “rapid, deep and sustained reductions” in greenhouse gas emissions from today, down 45 per cent by 2030 and net zero around mid-century, are required to limit global warming to 1.5°C (CP.26 Glasgow Climate Pact (AUV), para. 17 ). ENNHRI argues, however, that developed States in Europe must cut at a higher rate than this global average, in line with the principle of “common but differentiated responsibilities and respective capabilities”, to stay within their fair share of the remaining global carbon budget (discussed here and here).
Moreover, a goal of greenhouse gas neutrality by a specific year and intermediate reduction targets would not be sufficient in themselves because, as noted by the German Constitutional Court, “there would be nothing to specify how much greenhouse gas may be emitted in the intervening period” (para 156). Since the ECtHR requires States to “ensure the effective functioning of the regulatory framework adopted” for the protection of life and private life (Smiljanic, § 65), ENNHRI argues that the rate of planned greenhouse gas reductions must be sufficiently specified and realistic in view of national carbon budgets. To ensure the effective functioning of legislative and regulatory frameworks to deter risks to life, States may also be required to establish independent expert climate councils, enabling citizens to “predict and evaluate in advance the effects” of emission policies (see Taskin, § 119).
As one of the two first cases concerning climate change ever accepted by the ECtHR, the facts in the Klimaseniorinnen case certainly cover new ground. The ENNHRI submission argues, however, that the underlying legal issues can be dealt with according to the Court’s well-established case-law. While climate change poses some unique conceptual challenges to human rights law, national courts all over the world are demonstrating how these issues can be resolved (see here). In our third-party intervention, national human rights institutions across Europe invite the Court to confirm the holdings of apex courts in Germany and the Netherlands and ensure that the right to life and physical integrity of the 830 million people protected by the ECHR remains practical and effective in the wake of climate change.