Climate Change and the Enjoyment of Human Rights before the European Court of Human Rights.

[Originally published in EFE Verde]

On April 9th, the European Court of Human Rights (ECtHR) issued three rulings in the cases KlimaSeniorinnen v. Switzerland, Carême v. France, and Duarte Agostinho and others v. Portugal and 32 other States, in which, for the first time, the interference of the effects of climate change with the enjoyment of a series of human rights included in the European Convention on Human Rights (ECHR) of 1950 was addressed. 

 However, this is not the first time that this Court has judged the relationship between how environmental degradation affects the enjoyment of rights such as the right to life (Article 2, ECHR) or the intimacy and privacy of the home (Article 8, ECHR).  

 The first case in which this Court recognized this link was when a lawsuit that linked the violation of fundamental rights to environmental degradation was successful. 

 In the case of López Ostra v. Spain, the neighbor of a waste treatment plant that did not have authorization and was built with subsidies, had to leave her home due to smoke emissions, noise and odors. 

 The authorities did not prevent the repeated violations of the emission limit values that this waste treatment plant had.  

 Therefore, the ECHR considered that Article 8 of the ECHR had been violated due to a breach of the duty of protection by the Spanish authorities. 

 Of those cases related to climate, only KlimaSeniorinnen succeeded, while the other two were deemed inadmissible.  

 The amount of information that appeared on the same day that these sentences were published is striking, taking into account that the first case alone has more than 200 pages. 

 In the KlimaSeniorinnen case, on November 26, 2020, the Swiss Senior Women’s Association for Climate Protection filed a complaint with the ECHR against the Swiss Government. 

 They argued that their health is in danger due to heatwaves, exacerbated by the climate crisis. 

 The main points of the lawsuit argued that Switzerland’s climate policies are inadequate and violate women’s rights to life and health under Articles 2 and 8 of the ECHR, as heatwaves disproportionately affect older women, and that the Swiss Federal Supreme Court dismissed their case for arbitrary reasons, violating the right to a fair trial under Article 6 of the ECHR, since they had filed their claims in the country’s courts before going to the ECtHR.  

 The ECtHR declared that Switzerland violated the right to the intimacy and privacy of the home due to the existence of critical gaps in its legal framework to address climate change, as the CO2 Law only contains greenhouse gas (GHG) reduction targets for the year 2020 and not for the year 2030 (this despite a referendum being called in 2021 to include it, which was rejected by popular sovereignty).  

 Furthermore, the Swiss authorities acknowledged that they had not achieved their greenhouse gas emission reduction targets set for 2020. 

 Therefore, the ECtHR declared that the authorities did not act in a timely and appropriate manner and consistently in relation to the development, implementation, and application of the relevant legislative and administrative framework. 

 At the same time, it declared that the association had the right to have its case heard by an independent and impartial tribunal established by law, as the courts in that country, including the Supreme Court, had not examined the case considering that the association lacked standing. 

 On September 2, 2020, Duarte Agostinho and seven other young Portuguese individuals filed a lawsuit against Portugal and 32 other states, including all those of the European Union. 

 They argued that the defendants had violated a series of human rights due to their insufficient action against climate change. The plaintiffs asked the court to order the defendant countries to adopt more ambitious measures. 

 The plaintiffs argued that the effects of climate change in Portugal, such as wildfires and heatwaves, threatened their right to life and privacy, and that as young people, they are especially vulnerable to the consequences of this phenomenon. They claim that these countries had failed in their human rights obligations by not committing to reducing emissions enough to limit temperature increase to 1.5°C, as required by the Paris Agreement.  

 The ECtHR declared that cases related to climate change mitigation cannot be brought by individuals who reside outside of the defendant countries, it is the so-called issue of extraterritoriality. 

 Therefore, one of the key issues in the case was whether the defendant States, apart from Portugal, could be held responsible for climate-related impacts that their emissions contributed to generating but had impacts outside of their territory. 

 The Court expressed concern that the plaintiffs’ arguments would ‘turn the Convention into a global climate change treaty,’ so for this reason, along with the fact that the plaintiffs did not seek relief from the courts of Portugal, the ECtHR dismissed the lawsuit. 

 Finally, in the Carême case, the former mayor of the town of Grande-Synthe (France) filed a lawsuit against the French government’s refusal to adopt additional measures to meet the objective of the Paris Agreement to reduce greenhouse gas emissions by 40% by 2030. 

 Previously, the French Council of State accepted the lawsuits from Paris, Grenoble, and environmental protection associations, but rejected the individual applicant’s lawsuit, ruling in favor of the plaintiffs and ordering the government to adopt additional measures to achieve the objective of reducing greenhouse gas emissions by 40% by 2030. 

 The Council of State dismissed Careme’s lawsuit, arguing that he did not have a direct interest in the matter, as his claims were limited to the argument that, as an individual, his home was located in an area susceptible to flooding in 2040. 

 The plaintiff alleges that the dismissal of the lawsuit violates Article 8 of the ECHR. The ECtHR dismissed the lawsuit because the applicant no longer resided in France and had no relevant ties to Grande-Synthe.  

 Therefore, he could no longer claim victim status under the ECHR.  

 Without a doubt, these cases represent a new step in citizen action to address climate change through the courts, and as noted, it is the first time that the ECtHR has ruled on the relationship between climate change and its impact on human rights.  

 At the same time, it is important to keep in mind that the ruling rendered in the  KlimaSeniorinnen case only obliges the Swiss state, which will have to adopt new climate regulations and comply with them.  

 As it is clear in the ruling, it has been the failure to meet the mitigation objectives for 2020 and the absence of objectives for 2030, along with the lack of methods for quantifying emissions, that has tipped the scales in favor of the Swiss association.  

 However, regarding the possibility that this ruling could be a turning point and lead to an increase in climate lawsuits, it will be necessary to consider whether the potential defendant country has met its mitigation objectives and whether it has intermediate objectives for the year 2030 or even for the year 2040. 

 Therefore, it is important to remember that within the EU there is already a target for 2030: at least 55%, for which a battery of measures was adopted under the package known as “fit for 55%”, and work is underway to establish a new mitigation target for 2040 in the next five years, which will also require the adoption of new measures. 

Ana Barreira

Ana Barreira is a lawyer and founding Director of the International Institute for Law and Environment (IIDMA), an organisation that this year celebrates its 25th anniversary. She is co-president of the energy and environment section of the Madrid Bar Association.

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