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European Court of Human Rights and Climate Change – what are the implications of the court's recent decisions?

Published: 11 April 2024

On 9 April the European Court of Human Rights (ECHR) delivered its rulings in three cases concerning climate change. ECHR acknowledges in its rulings that the human right to respect for private and family life encompasses a right to effective protection from adverse effects of climate change.

Introduction

The European Court of Human Rights (ECHR) has assessed three different cases concerning climate change where the underlying key argument on which the complaints were based, has been that the European Convention on Human Rights entails a right to protection from negative effects of climate change.

In the first case (the "Switzerland case") four Swiss women and a Swiss environmental NGO, where all the members were older environmentally concerned women, filed a complaint against Switzerland arguing that the Swiss authorities were not taking sufficient action to mitigate the adverse effects of climate change.

The second case (the "Duarte Agostinho case") was raised by six young Portuguese nationals against Portugal and 32 other countries (including Norway). The argument submitted by the plaintiffs was that they were exposed to a significant risk of harm from climate change and that Portugal and the other 32 respondents were responsible for the situation.

In the third case (Carême v. France) a former mayor of the French municipality Grande-Synthe had complained that France had taken insufficient steps to prevent climate change.

The Rulings of the Court in the Duarte Agostinho case and Carême v. France (complaints considered inadmissible)

ECHR delivered its Grand Chamber rulings in all the three cases on 9 April 2024. Both the Duarte Agostinho case and the case of Careme v. France were found inadmissible for procedural reasons.

In the Duarte Agostinho case, ECHR found the case inadmissible as the applicants had not taken any legal actions in Portugal and therefore not exhausted their domestic remedies. The complaint against the other countries were found inadmissible as the court considered it did not have jurisdiction. It would in the court's opinion create a critical lack of foreseeability and uncertainty for the states if a member state of the convention should be considered responsible towards people from, in theory, anywhere in the world. The Careme v. France case was found inadmissible for somewhat similar reasons. In the court's opinion, the former French mayor did not have a sufficient strong connection to the complaint (no victim status) as he no longer lived in France.

The ruling in the Switzerland case: Violation of the right to respect for private and family life

In the Switzerland case, the court found that only the NGO, and not the four older women, had the status to bring a complaint before the court. The Court stated that an individual applicant must demonstrate that he is personally and directly affected by a governmental action or inaction in order to qualify. The Court also emphasised that the threshold for an individual to be considered as having victim status is especially high in climate change cases. The NGO was on the other hand considered entitled to bring actions on behalf of its members, without the members having to meet the victim-status requirements on an indvidual basis.

On the question of whether the Convention had been violated, the Court found it to be a matter of fact that climate changes exist and that these changes constitute a serious current and future threat to the enjoyment of the human rights guaranteed under the Convention.

In the Court's opinion article 8 regarding the right to respect for private and family life must be interpreted to entail a right to effective protection by the national authorities from the adverse effects of climate change on peoples' lives, health and quality of life.

In the Court's opinion the main obligation of the States – in order to comply with the Convention – is to adopt, and to apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change.

When considering the actions and measures adopted by the Swiss authorities, the Court found that there were significant gaps in the process of putting in place a sufficient regulatory framework and particularly a failure by the Swiss authorities to quantify, either through a carbon budget or otherwise, national emissions limits. The Court also noted that Switzerland had failed to meet its past GHG emission reduction targets. Overall, Switzerland had therefore exceeded its margin of appreciation and failed to comply with its duties under the convention.

Takeaways: What are the implications for national authorities and the energy sector?

A key implication of the decisions by ECHR is that the right to protection against the adverse effects of climate changes is now acknowledged as a human right.

Measures to combat climate change and decisions on how to set emission targets are still questions of national policy and political priorities. In order to fulfil its obligations, national authorities do however need to have regulations in place and a system for monitoring that actions are taken to achieve the targets that national authorities have adopted. As emphasised by the Court – the states also have a margin of appreciation.

It can be expected that the acknowledgment of right to protection against the adverse effects of climate change as a human right may inspire other complaints and spur new cases. The possibility for individuals and groups of individuals to initiate new cases will on the other hand be limited by the Court's emphasis on the high threshold for achieving victim status and the rejection of universal responsibility.

In Norway, the ongoing litigation in the so-called Climate Case II, where a judgement by the Oslo District Court of 18 January 2024 has been appealed, is an example of a climate-based litigation. The main issue in this case is whether development plans for petroleum fields must include an impact assessment of end-user combustion emissions from produced petroleum. The Oslo District Court concluded that such a requirement applies, not on the basis of the Convention but on the basis of other regulations.

The Switzerland case has already given basis for a discussion on whether Norway has to revise its Climate Change Act which does not set emission targets that are binding and therefore cannot be enforced by the courts.