Isaac Mittoo[1]
1. Introduction
With the European Court of Human Rights (ECtHR) deciding that States must do more to tackle climate change in the recent case of Verein KlimaSeniorinnen Schweiz and Others v Switzerland, human rights relating to the environment appear to have gone beyond their traditional conceptions, which has surprised many around the world. Previously, human rights had not been expanded in such a way to protect against the broader environmental challenge of climate change. This case relates to climate change and its effects on the environment as a whole, rather than a narrow locality like in earlier ruled cases. However, with rising fears of the harms of climate change and growing environmental litigation around the world, human rights which aim to protect the environment and people against climate change are not out of the blue.
This article will first outline the background of the recent case before analysing its outcome. It will not aim to evaluate the specific wording of the rights created by the ECtHR. It will, however, review the Court’s engagement with the general topic (namely, climate change and environmental protection) to show that the outcome of the case should not be seen as a surprise and further, that the Court has not overstepped.
In order to do this, the article will ask two main questions. The first question is whether the Court is justified in expanding human rights under the ‘living instrument principle’. This will involve an analysis of whether the Court is following the developing social values across the Member States. The second question is whether the Court has respected the ‘margin of appreciation’, which aims to ensure that there is a sufficient balance between the Council of Europe and its Member States. This will involve evaluating whether the Court goes too far and places too high a burden on the Member States.
2. The Background of the Recent Case
In Verein KlimaSeniorinnen Schweiz and Others v Switzerland, the applicants (comprising of individuals over 80 years old and an association representing Swiss citizens) claimed that Switzerland’s failure to address climate change had breached their fundamental rights. They argued that the rising global temperatures due to climate change had put their health at risk. They asserted that Switzerland was not fulfilling its obligations under the European Convention on Human Rights (ECHR) to try to keep the increasing global temperatures below 1.5°C, as it did not have a sufficient policy to reduce greenhouse gas emissions.
The ECtHR decided that, although the individual applicants were not successful, the application of the association did have merit. The Court held that Switzerland’s lack of action to tackle climate change had breached Article 8 ECHR (right to respect for private and family life). The Court decided not to examine the claim under Article 2 ECHR (right to life). However, it did consider Article 6 ECHR, stating that there was not sufficient access to justice for claims involving the environment (so finding a breach). This was because the domestic courts had rejected the applicants’ claims without evaluating the merits of their cases.
The Court outlined its main requirements for Member States: (1) to provide a timeline for reducing emissions with a budget, (2) put this plan into action with clear targets, (3) evidence this action, (4) update their targets as evidence changes, and (5) do so in good time.[2]
The reaction from all sides appears to be of surprise that the Court has gone so far in expanding human rights into the area of climate change because this is a highly political area (as a news article by Reuters indicates). Many (including Amnesty International) feel that this is a landmark case for both human rights and climate litigation.
3. Analysis of the Case: Should the Result be a Surprise?
As noted, this article will analyse the involvement of the Court on the subject matter of climate change to show that its judgement in KlimaSeniorinnen is not a surprise and has not gone too far. In order to do so, the article will aim to answer two questions.
The first question is whether the Court is justified in expanding rights under the ‘living instrument principle’. As a ‘living instrument’, the ECHR is allowed to evolve with the values of society. In this context, in order for the Court to justify expanding rights, it needs to be shown that the views of society have developed to place importance on tackling climate change. The general trend in case law appears to show that the number of climate-related cases has increased over the last few years, with many reaching international courts. Setzer and Higham explain that a number of these cases have directly targeted government policy or the failure to implement a sufficiently strong environmental policy.[3] This is similar to the fact pattern in KlimaSeniorinnen. Indeed, there have been a number of successful cases regarding climate change and human rights, such as Urgenda Foundation v State of the Netherlands and Daniel Billy and Others v Australia. Therefore, the ECtHR’s judgement in KlimaSeniorinnen only seems to follow the trend of the increased awareness of climate change and its possible harms; it is not as landmark as it may first appear.
In fact, the ECtHR’s case law shows an incremental development towards protecting environmental and human rights. As argued by Jeremy Letwin, the ECtHR already imposes requirements for reducing emissions of pollutants. For example, in Tătar v Romania and Cordella and Others v Italy, the Court created a framework of requirements for States to ensure that they have an effective procedure to protect applicants from harm. Although Letwin suggests that the only novel element in KlimaSeniorinnen was the requirement that the States enforce their policy, the Court has enforced more stringent substantive obligations as well as procedural obligations in many situations (including environmental cases; see Florea v Romania and Fadeyeva v Russia). So, the Court does not go beyond what it is expected to do. It would seem that the most unique part of KlimaSeniorinnen is its application of these rules to a context that does not involve a limited locality. In most of the other cases concerning pollution, the applicants affected were in a limited area where the pollution was released. Now, the Court is recognising the wider impact of pollution across the population. However, this still appears to be an incremental development, where the Court does account of the difficulties arising from reducing climate change (as suggested below) and still reflects the growing international concern about climate change.
Moreover, the rise in cases involving climate change fits with the rising interest in the environment. Data from the Office for National Statistics supports this point, with many feeling that climate change needs to be taken seriously due to its adverse effects and that the protection of the environment is an important aim.
Therefore, the recent trend in case law involving the environment, together with the attitudes towards tackling climate change, suggests that the Court is simply adhering to its duties of interpreting the ECHR as a ‘living instrument’. For that reason, the Court is simply reacting to new values and placing them within the context of human rights. This means that KlimaSeniorinnen should not be seen as a surprise, as the Court has gradually developed its case law to reflect the need to protect the environment and tackle climate change.
The second question to be asked is whether the Court has respected the autonomy of States under the ‘margin of appreciation’ principle. The point of this discussion is to assess whether the Court has stretched beyond its remit and places too high a burden on Member States. In his dissenting opinion in KlimaSeniorinnen, Judge Eicke suggested that the Court had taken too many innovative steps. It is true that the Court has developed a new right to protect those who suffer from the effects of climate change. However, as noted, the ECHR should develop over time. Thus, innovation does not necessarily mean that the Court has gone too far. Furthermore, as Stephanos Stavros explains, this new right is fairly narrow and only applies in certain situations. It puts emphasis on the importance of tackling climate change, but leaves all the substantial decisions about how this should be done to the States themselves. Many politicians have suggested that the ECtHR goes too far in protecting rights and does not respect the autonomy of States. However, this does not appear to be the situation here. While it is important to maintain the trust of States to ensure an effective working relationship between the members and institutions of the ECHR, it is also necessary for the Court to evaluate the legal aspects of cases without interference from politicians.
It could be argued that the Court is placing too high a burden on States. This is because it is not just one State that is contributing to climate change, and that by stretching the rights too far beyond their initial meaning, it will alienate States and reduce cooperation with the ECHR (as Bates argues). However, the Court is still respecting State autonomy, as it allows each State to decide its own measures while working with the Committee of Ministers. Therefore, the Court is simply considering the legal aspects of the environment and leaving the policy decisions to States and their political leaders. This appears to respect the distinction between law and politics, as well as the distinct role of the Court and the Member States of Council of Europe.
The ECtHR is also not going any farther than what the States themselves have declared. States have already accepted the importance of tackling climate change. For example, the Council of Europe has discussed the right to a healthy environment, which is similar to the content of the rights suggested by the Court in KlimaSeniorinnen. Furthermore, many Member States have signed international agreements (such as the Paris Agreement) with the aim of reducing emissions. Thus, the Court restating this aim should not come as a surprise or be seen as going beyond what the States have already accepted to do. It could be argued that it is not the place of the Court to be upholding these international agreements. This is true; however, the Court is using these agreements as context for the development of human rights, and so, is only indirectly enforcing them. Therefore, it appears that the Court is simply following the expected line of reasoning which respects both the natural progression of the law and State autonomy.
Stefan Theil supports this argument with his suggestion that the Court offered a wide margin of appreciation to Member States. The Court clearly takes into consideration the difficulties surrounding solving climate change and how this is not a simple matter. It recognises the problems of being able to attribute harm caused by climate change to individual States and the political challenges involved with reducing climate change, given that this is an international issue. Therefore, with this wide margin of appreciation, the Court does not go as far as the other environmental cases previously mentioned. In KlimaSeniorinnen, the ECtHR also strikes the correct balance by using Article 6 ECHR to strengthen access to justice within Member States. This will mean climate justice will be taken seriously, as domestic courts will have to examine the merits of applicants’ cases. It also reduces the need for the ECtHR to get involved immediately, and so ultimately gives power back to the States in deciding how to control climate change.
This shows that, despite expanding human rights, the Court has followed the values and intentions of the Member States. Therefore, the Court is not placing too high a burden on the Member States, nor is it making any political choices. It is simply following the decisions already made by the Member States, leaving them control over their future policy.
4. Conclusion
In conclusion, the outcome of the case appears to create a positive balance between protecting human rights and respecting the autonomy of Member States. The judgement should not be seen as a surprise, as the ECtHR has expanded rights under the ‘living instrument principle’ in a justified way. The Court has also offered a wide margin of appreciation in order to respect the policy decisions required by States when working out how to tackle climate change. It remains to be seen what effect the judgement will actually have on addressing climate change. Nevertheless, it lays the foundation for stronger legal protection of the environment and human rights.
[1] BA (Hons) in Law, University of Cambridge.
[2] Application no. 53600/20 [550]-[551].
[3] Joana Setzer and Catherine Higham, ‘Global trends in climate change litigation: 2023 snapshot’ (2023) <https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2023/06/Global_trends_in_climate_change_litigation_2023_snapshot.pdf>accessed May 2023, 2-3.