June 14, 2024
By Jef Seghers
On 9 April 2024, the European Court of Human Rights (ECtHR, the Court) issued its long-awaited Grand Chamber judgments in three climate litigation cases. This post is about the most comprehensive of the three judgments – and the only one in which the complaint was not ruled inadmissible: the one in the case of Verein KlimaSeniorinnen and others v. Switzerland. All three judgments (the other two being Carême v. France and Duarte Agostinho and others v. Portugal and 32 others) have been extensively unpacked, analysed and discussed in numerous blogs, publications and conferences (see, for example, here, here, and here).
In this blog post, I will briefly describe the facts of the case as well as the judgment itself. The main focus of the analysis will be looking ahead: These are the Court’s first substantial climate judgments, but they certainly won’t be the last. This raises the question how the 9 April judgments may influence pending and future cases before the Court.
The complaint was brought by four elderly women and a Swiss association, Verein KlimaSeniorinnen Schweiz, concerned about the impact of climate change on their living conditions and health. The association was founded in 2016 with the purpose of pursuing climate-aligned court action. Its stated goal is for the state to fulfill its duty to protect them by pursuing a climate policy that is appropriate for preventing dangerous disruption to the climate system. More specifically, they demand a comprehensive set of measures tailored to this goal and better implementation of those measures already adopted. After having exhausted domestic remedies without success, the KlimaSeniorinnen, as well as four individual plaintiffs, submitted an application to the ECtHR on 1 December 2020. On 26 April 2022, a chamber of the Court referred the case to the Grand Chamber.
The members of the association, as well as the individual plaintiffs (aged between 78 and 89) contend that they are affected by climate change, in particular by heat waves which cause their health problems to worsen. They requested that the Swiss authorities take the necessary measures to meet the 2030 goal set by the 2015 Paris Agreement, in particular to limit global warming to well below 2°C compared to pre-industrial levels.
By not setting sufficiently ambitious greenhouse gas (GHG) emission reduction goals and by not taking the required implementing measures, the applicants allege that Switzerland has failed to comply with its positive obligations to effectively protect life (Article 2 ECHR) and respect for private and family life and the home (Article 8 ECHR), especially when taking into account the precautionary principle and the principle of intergenerational equity. They also claim a violation of Article 6 (the right to access to court). Finally, they complain of a violation of Article 13 (effective remedy).
The KlimaSeniorinnen judgment is the leading of the three climate judgments the Court rendered on 9 April. The Court deliberately decided to deal with the three cases at once; hence, the three judgments should be read and interpreted together as a ‘package’.[1] Read together, the judgments confirm the Court’s jurisprudence in certain areas, such as the need to exhaust national remedies and extraterritorial jurisdiction in Duarte Agostinho;regarding victim status in Carême.
Even so, two substantial shifts can be identified, both of them developed in the KlimaSeniorinnen judgment. The first concerns the admissibility of claims by associations of victims, which can be described as a big shift that takes some earlier small shifts to a logical conclusion. For the first time, the Court accepts a claim brought by an environmental NGO (“association”).[2] This is a significant step, and the Court doesn’t take it lightly. It views accepting the locus standi of associations in a climate change context – which, generally speaking, affects every person to some degree (§479-485) – as a way to strike a balance between effectively protecting Convention rights and allowing unlimited actio popularis type claims (§484). In doing so, it develops a test to determine the standing of associations in the climate change context (§502), which the Verein KlimaSeniorinnen meets.
The second, and probably most impactful and controversial, shift regards the recognition of the fact that states have positive obligations regarding climate change mitigation and adaptation under Articles 2 and 8 of the Convention. In essence, the Court had to decide on the criteria (§541-543) to assess if a state has exceeded its margin of appreciation when determining climate policy in the context of the undeniable risks climate change poses. The Court finds a “right for individuals 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” (§§ 519 and 544, emphasis added), and imposes a new “primary duty” on 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” (§ 545, emphasis added). This 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” (§ 548, emphasis added).
The Court seems to be well aware that it is taking a major step which will almost certainly be criticised; indeed, some of the possible counter-arguments are already set out in the partly concurring, partly dissenting opinion of Judge Eicke. In particular, he questions if it is wise to have courts evaluate whether states’ climate policies are within the boundaries of the newly reduced margin of appreciation. He fears that the Court (as well as national courts) is ill-equipped to assess compliance with “the need to (…) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence” (§ 550 (d)), given the highly complex nature of (the fight against) anthropogenic climate change (opinion of Judge Eicke, §66).
This puts the spotlight on the delicate nature of the balance the Court had to strike. On the one hand, it could not ignore the overwhelming and essentially uncontested (§433) scientific evidence of anthropogenic climate change and the current and future harms it entails. On the other hand, it had to apply the principles of subsidiarity and respect states’ margin of appreciation, while taking into account the fears of a gouvernement des juges which are routinely stoked in climate change matters. The Court takes a clear stance from the outset:
“Judicial intervention, including by this Court, cannot replace or provide any substitute for the action which must be taken by the legislative and executive branches of government. However, democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law. (…) The task of the judiciary is to ensure the necessary oversight of compliance with legal requirements.” (§412, emphasis added)
Given the uncontested scientific facts (§§103-120, §542) before it, the Court cannot shirk its responsibility:
“[T]he current situation therefore involves compelling present‑day conditions, confirmed by scientific knowledge, which the Court cannot ignore in its role as a judicial body tasked with the enforcement of human rights.” (§413, emphasis added)
The Court, in other words, while mindful of the need to strike an appropriate balance, simply cannot disregard overwhelming scientific evidence before it that shows the risks climate change poses to the enjoyment of Convention rights, without ignoring its mandate as a guardian of those rights.
Adjudicating matters of environmental law in general, and climate change in particular, requires courts to have, or to acquire, substantial knowledge of scientific methodologies and findings, often relying on expert testimonies and interdisciplinary knowledge (see here, here, and here). Effectively integrating this knowledge can help a court maintain legitimacy, even when balancing subsidiarity and the required respect for democratic processes with its mandate to ensure that governments live up to their human rights obligations.
The Grand Chamber judgment is very long and extensively argued, and relies heavily on climate science as well as on domestic jurisprudence (§§ 235-272) to come to its conclusions. Even though climate change is rightly said to be an overwhelmingly complex technical and societal issue, the scientific evidence of its causes, evolution and effects, as well as of what measures are needed to keep it “well below 2 °C above pre-industrial levels” (Paris Agreement Article 2) is ironclad.
Indeed, the Court bases its judgment on a careful evaluation of “the best available evidence” (which it also expects from states, see §550-552). In particular, it refers extensively to the reports of the Intergovernmental Panel on Climate Change (IPCC; §§ 103-120). The IPCC reports on the matter are widely recognised as unimpeachable authority (see also recent advisory opinion on climate change and international law by the International Tribunal for the Law of the Sea).
Based on this crystal-clear evidence, the Court did not shy away from assuming its responsibilities in the trias politica (see §412-413, cited above) despite the criticism mounted against it of surpassing its mandate or trespassing on the terrain of the legislative and executive branches of government. This chorus of criticism must have been predictable for the Court, but it did not deter it.
Indeed, the Court’s legitimacy has been increasingly called into question in the past decade [here, here and here], which, according to some observers, has led the Court to tilt towards deference in seeking a balance between activism and deference. The political lurch to the (populist) right we are currently witnessing in Europe will certainly not make this balancing exercise any easier for the Court.
Nonetheless, based on the (scientific) evidence before it, the Court could not but find that there are limits to states’ margin of appreciation when it comes to combating climate change. As regards the emission reduction goals in particular, there is little margin if states are to implement the commitments they have made to limit global warming: “[T]he nature and gravity of the threat and (…) the Contracting Parties’ accepted commitments to achieve carbon neutrality, call for a reduced margin of appreciation for the States” (§543, emphasis added). However, when it comes to the “choice of means, including operational choices and policies adopted in order to meet internationally anchored targets and commitments in the light of priorities and resources, the States should be accorded a wide margin of appreciation” (§543).
This is not a Court overstepping its mandate. Rather, it is a Court taking a relatively restrained conclusion. The judgment seems to me to be a straightforward translation of the scientific and societal consensus as regards the causes, impacts and expected evolution of anthropogenic climate change into legal terms and consequences. Even though checks and balances are important, it is the Court’s obligation to answer the legal questions put before it. The reality of climate change in 2024 leaves no choice but to recognise the threat it poses to the enjoyment of Convention rights.
What does this judgment bode for the pending and future climate cases before the Court? Even though the Court will most certainly follow the general direction and the standards set by its 9 April judgments, each case presents its own particularities and challenges. A number of climate cases were adjourned pending the Grand Chamber judgments. They can be expected to be taken up again now.
One case in particular will raise further questions on the extent of states’ positive obligations in relation to climate change under Articles 2 and 8 of the Convention. In the case of Greenpeace Nordic and others v. Norway, the question before the Court is whether Norway has violated the Convention rights of its citizens by deciding to licence the development of new deep-sea oil and gas extraction in the Barents Sea. Applicants rely on ‘best available science’ and, crucially, also address the emissions that will be caused through the burning of the oil and gas, in- or outside Norway (so-called scope 3 emissions), which, according to the applicants, the Norwegian government didn’t appropriately account for when granting the exploration licence.
In KlimaSeniorinnen, the Court judged that it is incumbent on governments to set emission reduction goals compatible with the Paris Agreement, based on credible carbon budgets, while leaving a wide margin of appreciation as to the means to achieve these goals. However, the budgets referred to in KlimaSeniorinnen did not include scope 3 emissions. This is a crucial point of difference: Turning again to the Norway case, it could be argued that, by including scope 3 emissions in national carbon budgets, emissions could be counted twice (since they are also included in the carbon accounts of the countries where they are burnt).
On the other hand, the best available science makes it clear that any new exploration is incompatible with achieving the goals. The International Energy Agency (IEA) states in a recent report: “[There are] no new oil and gas fields approved for development in our [net-zero] pathway, and no new coal mines or mine extensions are required” (p. 21). In its 2023 climate change synthesis report, the IPCC makes clear that “[p]rojected cumulative future CO2 emissions over the lifetime of existing and planned fossil fuel infrastructure (…) are approximately equal to the remaining carbon budget for limiting warming to 2°C (…) (high confidence)” (B.5.3). It is hard to imagine how the Court could consider a state with a legislative framework that allows for the exploration of new fossil fuels projects in the future as
“act[ing] in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework (…) to comply with its positive obligations in the present context” (§573 KlimaSeniorinnen).
The temporal dimension is essential here: Open-ended commitments are not sufficient; a state needs to put in place a credible policy based on a carbon budget to convince the Court that it meets its obligations (§572 KlimaSeniorinnen).
In light of the above, it is difficult to imagine the Court accepting that new carbon exploration falls within the margin of appreciation of Norway’s government. Unless it takes the view that scope 3 emissions fall outside of Norway’s jurisdiction. However, an a contrario argument would be that, irrespective of where the oil and gas is burnt, Norway contributes to GHG emissions by allowing the extraction of fossil fuels. Since Norway has full jurisdiction over the extraction licences, and the plaintiffs are all Norwegians, the issues that led the Court not to accept extraterritorial jurisdiction in Duarte Agostinho (see §§181-213 of that decision) are not at play here. I therefore don’t expect the scope 3 emissions to be an impossible hurdle.
In its 9 April judgments, the ECtHR created a new paradigm for rights-based climate change litigation. The Grand Chamber put the living instrument doctrine to work, interpreting Convention obligations in the light of climate change. While it was clearly aware of the criticism it opened itself up to, the decisions are carefully argued in legal terms, and thoroughly grounded in unimpeachable climate science. The Court, in my opinion, thus fully exercises its mandate, without overstepping any boundaries set by the separation of powers: the reality of climate change compels it to spell out what is required to safeguard Convention rights. Even though climate change is technically complex, the judgment is legitimised by its highly robust scientific underpinnings. The principles developed are sure to be applied in future climate cases before the Court. Even though these will raise new points of law, it will be almost impossible for both states and the Court to argue their way out of their obligations in view of the undeniable reality of climate change and the dangers it poses to human rights.
[1] During an online conference on the judgments, judge Mattias GUYOMAR explicitly said as much (“Le changement climatique et la Cour européenne des droits de l’homme” organised by the Institut des sciences juridique et philosophique de la Sorbonne).
[2] In other contexts, representative complaints have been allowed where failure to do so would have resulted in states escaping accountability; see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, for example.
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