Why Does it Matter?

The case concerned a complaint by four women and a Swiss association, Verien KlimaSeniorinnen Schweiz, whose members were all older women concerned about the consequences of global warming on their living conditions and health. They argued that the Swiss authorities were not taking sufficient action to mitigate the effects of climate change.

In its judgment the Court noted that climate change is one of the most pressing issues of our time. Consistent with that, recent years have seen a significant rise in the numbers of litigations globally raising climate related issues.  

Challenges against government decisions have been particularly prominent. In the UK such challenges have often asserted a failure to properly consider the UK's obligations under the Paris Agreement. However, the problem with challenges raised on that basis is that the Paris Agreement is not directly effective in the UK and neither (as the UK Supreme Court ruled in December 2020 in Friends of the Earth and Others v. Secretary of State for Transport) does it form part of Government policy for the purposes of planning law. As a result, the Courts in the UK have tended to the view that questions concerning the interpretation of the Paris Agreement are for the Government to determine.

That problem has led to challengers increasingly seeking to assert that climate issues risk a violation of human rights – in particular the rights to life and to private and family life (per Articles 2 and 8 of ECHR). In terms of Section 6 of the Human Rights Act 1998, it is unlawful for a UK public authority to act in a way which is incompatible with a Convention right. In terms of Section 7, a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by Section 6 may bring proceedings against the authority.

However, such proceedings can only be brought if the claimant is (or would be) a victim of the unlawful act for the purposes of Article 34 of ECHR. Jurisprudence to date has suggested that the bar for meeting that status is a very high one and previous attempts to challenge Government decisions on human rights grounds have often stumbled at this hurdle, particularly when brought by associations whom the courts have indicated need to be able to demonstrate that they would be directly affected by the matter complained about (see, for instance, Plan B. Earth and Others v. United Kingdom).

Moreover, previous attempts to align arguments based on human rights with the Paris Agreement have failed. In Plan B. Earth and Others v. United Kingdom the Court of Appeal noted that: "the fundamental difficulty which the claimants face is that there is no authority from the European Court of Human Rights on which they can rely citing the Paris Agreement as being relevant to the interpretation of the ECHR".

What is different about this case?

In Verein KlimaSeniorinnen Schweiz and Others, however, the European Court of Human Rights distinguished the case from any environmental case law to date.

The Court confirmed that Article 8 of the ECHR (right to respect for private and family life) encompasses a right to effective protection by state authorities from the serious adverse effects of climate change on citizens' lives, health, well-being, and quality of life. In doing so, the Court has established a direct link between the rights set out under the ECHR and climate change.

The Court ruled that contracting states have a positive duty to adopt and apply regulations and measures capable of mitigating the existing and potentially irreversible future effects of climate change. In particular, the Court noted that contracting states must observe international commitments (including the Paris Agreement) and put in place the necessary regulations and measures to prevent an increase in Greenhouse Gas ("GHG") concentrations and a rise in global temperatures beyond levels capable of producing serious adverse effects on human rights under Article 8. In order to do so, contracting states require to undertake measures to reduce their GHG emissions, with a view to reaching net neutrality.

The Court further held that whilst the four individual applicants did not meet the victim status criteria under Article 34, the association did. The Court held that the special feature of climate change as a common concern of humankind and the need to promote intergenerational burden-sharing rendered it appropriate to make allowance for recourse to legal action by associations. The Court further held that the right of an association to act on behalf of its members in this respect was not dependent upon the individual members qualifying as victims.

Comment

This landmark ruling has the potential to open the floodgates for human rights claims against contracting state governments on climate change grounds. It also sends a clear message to contracting state governments (including the UK) regarding the implementation of international commitments to combat climate change. Whilst national authorities enjoy a wide discretion as to the means chosen to meet such obligations, it is clear that states must take action in a timely and efficient manner to avoid human rights violations.

The Court's decision is binding on contracting state governments, including the UK government, and each will likely wish to look at their own progress on implementing domestic legislation to mitigate adverse climate effects to avoid violating citizens' Article 8 right. State authorities will also need to take care to ensure that complaints raised by citizens regarding climate change are given due consideration to avoid violating Article 6 (right to fair trial).

The Climate Change Committee has already urged the UK government to act urgently to meet its international climate commitments and to replace fossil fuels with low-carbon alternatives. Such advice does not sit comfortably with the UK government's plans to award further licences for oil and gas projects in the UK and it remains to be seen what implications this decision will have for the UK's oil, gas, and energy industries in particular.

This case is the first example of an actionable right to enforce a State's obligation to provide effective protection against climate change related harm.  The scope and extent of this obligation remains broad but it is likely that this judgment will result in the introduction of more regulatory measures addressing climate change mitigation.  In fact, the ECHR indicated that States should be aiming for net neutrality "within, in principle, the next three decades".  Where States do react accordingly, this will undoubtedly have a significant impact on the private sector active within such States.