ECHR ruling paves the way for climate litigation against offending nations

On 9 April 2024 the European Court of Human Rights (ECHR) delivered a landmark ruling on the obligations of its 46 signatory states to mitigate the impacts of climate change. Verein KlimaSeniorinnen Schweiz[1] and Others v Switzerland (53600/20) marks the first time that government inaction in relation to the climate crisis has infringed basic human rights, and paves the way for future legal challenges against signatory states who fail to protect their citizens from the adverse impacts of climate change.

Background

The case was brought by members of a non-profit association (KlimaSeniorinnen) established to promote effective climate protection for women in Switzerland. The claim sought judgment against Switzerland for failing to protect its citizens from the impacts of global warming. In particular, with members predominantly aged over 70, KlimaSeniorinnen highlighted the increased risks of global warming to the health and quality of life for women and the elderly, and the detriment being suffered as a result of inaction by the Swiss government and authorities.

Human Rights and Climate Change

KlimaSeniorinnen argued that the Swiss government’s failings breached several provisions of the European Convention of Human Rights (the Convention):

• Article 2: the right to life
• Article 8: the right to respect for an individuals’ private and family life and their home
• Article 6: the right to a fair trial

Specifically, it was alleged that the Swiss government failed to implement the necessary regulatory framework to protect the health of its citizens. The claim highlighted excess illness and deaths among the elderly, and in particular women, who suffer the greatest harm from heatwaves. KlimaSeniorinnen asserted association members had been unable to carry on their daily lives during summer heatwaves, and that this infringed Article 8 which includes the right for personal autonomy and the right to age with dignity.

The Swiss government argued that climate change is a global phenomenon caused collectively by all nations. Given Switzerland’s comparatively low greenhouse gas emissions, the government argued that the applicants could not demonstrate that the suffering alleged was being caused by Swiss emissions.

The Climate Change Obligations of Governments

The Court’s assessment primarily focused on rights protected by Article 8. It held that the adverse effects of climate change can amount to an interference with an individual’s enjoyment of his or her private or family life or home. This watershed assessment extends the rights of citizens to protection by their state from the serious adverse effects and risks of climate change on their health, well-being and quality of life.

The Court outlined that, in the context of climate change, a government’s primary obligation to protect the rights of its citizens is to adopt regulations and measures capable of mitigating its existing and future impacts. In assessing the extent of a governments’ conformity with this obligation, the Court set out that close scrutiny will be paid to:

• The adoption of general measures specifying a target timeline for achieving carbon neutrality (or an equivalent method of quantifying greenhouse gas reductions)
• The implementation of intermediate targets to ensure that overall goals are adhered to
• Keeping the relevant targets updated, through due diligence and reference to the best available evidence
• Providing evidence to demonstrate compliance with emission reduction targets
• Acting in “good time” and in an “appropriate and consistent” manner when devising and implementing the relevant legislation and measures

The Court also noted that further, supplemental measures would be required to protect individuals from the most severe and imminent consequences of climate change.

The Judgment against The Swiss Government

Assessing Switzerland’s record in adhering to these obligations, the Court ruled that the government’s actions on tackling climate change constituted a breach of Article 8. Central to this infringement was the government’s failure to (1) adhere to its 2020 targets set to cut carbon emissions; (2) enshrine in law new emissions targets designed to keep global warming below 1.5^oC; and (3) act in good time to draw up and implement a strategy for reducing emissions, including a failure to quantify national emissions limitations.

The Court noted that the introduction of new legislation was insufficient to remedy the shortcomings of Swiss inaction to date and highlighted the need for immediate action to prevent overburdening future generations.

The Court separately found that the Swiss Government had infringed its citizens’ rights to a fair trial afforded by Article 6, because the Swiss administrative authorities and domestic courts at two levels of jurisdiction had rejected KlimaSeniorinnen’s claim without assessing its merits. This restriction of access to judicial consideration was concluded to have impaired the right to a fair trial.

Key Takeaways for the UK

The Convention is an international treaty (distinct from the European Union) incorporated into UK law by the Human Rights Act 1998 (HRA). The HRA requires all UK law to be interpreted, as far as possible, in a way that is consistent with the Convention and to take into account the ECHR’s case law. Therefore, the principles laid down by the ECHR in KlimaSeniorinnen will be of interest to any party wishing to hold the UK Government’s climate policy to account.

In summary, the ECHR decided that government action to mitigate climate change and protect citizens from its adverse consequences should be assessed with reference to these key points:

• An arguable claim under Article 8 will require a specific negative effect on an individual’s private or family sphere. It will be insufficient if the detriment suffered is negligible in comparison with the environmental hazards inherent in modern city life.
• It is insufficient for governments to legislate the timeframes for achieving carbon reductions without taking requisite immediate and interim actions. Courts will scrutinise governments’ implementation of administrative, regulatory and legislative frameworks and will assess how these measures contribute to overall targets to reduce emissions. Failure to implement measures in “good time” will constitute an infringement on citizens’ human rights.
• Governments should legislate for both overall emissions targets and intermediate targets that assess progress. Targets will need to be updated with reference to the best available evidence.
• States must ensure that citizens are provided access to courts at national level to hear complaints relating to climate change. Failure of national courts to assess the merits of complaints will constitute a breach of Article 6.

Those in the UK seeking to challenge the decisions of the Government and public bodies in relation to climate change can do so under the HRA by way of judicial review. Our courts have authority to disregard secondary legislation (such as statutory instruments created by ministers or government departments) that is incompatible with the Convention and, most commonly, send the matter back to the relevant authority to reconsider.  Alternatively, our courts can issue a declaration of incompatibility between the UK’s primary legislation (statutes passed by parliament) and the Convention – prompting parliament to change the law or, if not, prompting the claimant(s) to refer the UK to the ECHR.  A decision of the ECHR is binding on the UK and it is obliged to remedy any violations of the Convention, by amending its legislation and/or paying compensation to victims who have sustained damage.

For further information and advice about issues relating to the above, please do get in touch with Jonathan Kitchin or Alex Southall.

[1] Senior Women for Climate Protection in Switzerland.