Special Issue: 5th Anniversary of the Paris Agreement
In the last few years, climate change litigation has come to the fore due to the tremendous impact of climate change on the environment and human life. Because of the violation of several human rights, human rights-based climate change cases are pending all over the world. The Urgenda case in the Netherlands has demonstrated a successful human rights approach to climate change and is likely to influence future climate litigation. However, even though such an approach has a lot of promising opportunities, the People v Arctic Oil case in Norway pointed out challenges which occur when addressing climate change with human rights law. The Paris Agreement, a landmark environmental legal instrument adopted five years ago, contains the first mention of human rights in a climate change treaty.
It is now the Senior Women for Climate Protection case which could provide some clarification in regard to legal questions arising from a human rights-based climate change litigation. The applicants are a group of senior women, which decided to take legal action against the Swiss government in order to increase the ambition of Switzerland’s climate policy. As older women are particularly endangered by intense and frequent heatwaves caused by climate change, a group of 1,800 women took immediate action. They make the claim that the Swiss government fails to reduce greenhouse gas emissions and; therefore, violates human rights enshrined in the Swiss constitution and the European Convention of Human Rights (ECHR). After having exhausted the possible legal remedies in Switzerland, they filed an application based on inter alia Articles 2 and 8 of the ECHR to the European Court of Human Rights (ECtHR) in November 2020.
As this case, together with the Portuguese Youth case, is the first of its kind before the ECtHR, it is of particular interest to international lawyers. Several questions arise about the applicability of the ECHR to climate change. This blogpost considers the challenges of applying Articles 2 (right to life), 8 (right to respect for private and family life) and 34 (definition of ‘victim’) of the ECHR in climate change-related cases.
The ‘Victim’ Requirement of Article 34 ECHR
In order to make an individual application to the ECtHR, the applicants have to be a ‘victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention of the Protocols thereto’ (Article 34 ECHR). In its jurisprudence, the ECtHR has developed that an individual fulfills the requirement of being the ‘victim’ if they are ‘personally affected’ by a right’s violation (Karner v Austria). In addition, the violation must have already occurred. This limitation not only to individual claimants but also to occurred violations is a well-known barrier of a human rights-based approach to climate change. Moreover, human rights violations in climate change cases often have not materialised yet, as some of the risks of climate change are ongoing developments and will materialise predominantly in the future.
Even though these obstacles exist, the ‘victim’ requirement can still be met in climate change cases. The ECtHR has already ruled that in exceptional cases, ‘the risk of a future violation may nevertheless confer the status of ‘victim’ on an individual applicant (…) if he or she produces reasonable and convincing evidence of the probability of the occurrence of a violation concerning him or her personally’ (Asselbourg v Luxembourg). Considering the dangerous impacts of climate change, which are clearly defined than ever before due to the development of climate science and environmental regimes such as the Paris Agreement, it is undoubtedly possible to prove that human rights will be violated if global warming continues unabated. According to the 2019 IPCC Report, limiting global warming to 1.5°C is expected to substantially reduce climate-related risks for natural and human systems. As the achievement of this target is extremely unlikely if the emission gap is not bridged by 2030, there is no doubt that urgent measures are needed now. Although this finding might be derived from climate science and not from human rights law, the outcome does not change: there is a real threat of climate change to human rights.
Senior Women for Climate Protection Switzerland claim that they are direct victims of Switzerland’s omissions because ‘they have suffered and continue to suffer personally from heat-related afflictions’. Moreover, there is a sufficiently close connection between these omissions and the risk of heat-related mortality and morbidity, which cannot be denied by the fact that Switzerland is a small state or because their particular interest co-exists with a general public interest. In the domestic litigation, the Swiss Federal Supreme Court decided that the applicants do not fulfill the ‘victim’ requirement of Article 34 ECHR. However, this does not mean that the ECtHR reaches the same conclusion. As can be seen in the Dutch Urgenda case, the applicants were identified as victims of possible human rights violations by climate change. Thus, it will be interesting to see which direction the ECtHR will take when deciding if the senior women qualify as victims under Article 34 ECHR.
Application of Articles 2 and 8 of the ECHR on Climate Change
So far, the ECtHR has ruled on a few cases concerning states’ acts or omissions in regard to environmental or natural disasters finding violations of Articles 2 and 8 of the ECHR such as deaths resulting from a methane explosion at a household-refuse tip or loss of life occasioned by a foreseeable mudslide. However, the application of these provisions to climate change is new to the Court. As climate change is a global issue with several legal challenges, it is not as tangible as other environmental or natural domestic disasters. Still, the application in the present case is based on the right to life and the right to respect for private and family life because these rights are affected by climate change-induced heatwaves. The applicants argue that Switzerland is violating their rights by failing to comply with its positive obligation to take all necessary measures to reduce the emissions of greenhouse gases in order to not exceed the global temperature of 1.5°C and to protect their human rights.
Looking at the jurisprudence in regard to environmental hazards, states are obliged under the positive obligation to protect life to ‘take appropriate steps if there is a real and immediate risk to persons and the state in question is aware of that risk’ (Öneryildiz v Turkey). Moreover, they have to take preventive measures to hinder this danger even though its materialisation is unsure.
In regard to the right to respect for private and family life, states have the positive obligation to take ‘reasonable and appropriate measures to protect individuals against possible serious damage to their environment’ (Cordella and Others v Italy). As the obligations of both Articles overlap, states are required to take the same measures under Article 8 as under Article 2 of the ECHR in environmental hazard cases.
Looking at the Swiss case, there is a real and immediate risk of heat-related afflictions to senior women caused by climate change, which is scientifically proven. As Switzerland is party to the UNFCCC and the Paris Agreement, it is clear that it is aware of the risks climate change poses to human health. Thus, the ECtHR’s environmental jurisprudence could be applied to climate change cases. However, it is the ECtHR which will decide if climate change satisfies all the conditions of the jurisprudence based on Articles 2 and 8 ECHR. According to the Dutch Supreme Court in the Urgenda case, climate change can be subsumed under Articles 2 and 8 ECHR due to its real and immediate risk to the lives and welfare of Dutch residents. It is hoped that the ECtHR reaches the same conclusion. If so, the Court could give valuable information if Switzerland is obliged to take measures for the protection from climate change. While the Dutch State argued that Articles 2 and 8 ECHR do not entail an obligation to take mitigation or adaptation measures, the Supreme Court decided that the Netherlands is obliged to do ‘its part’, which is the 25% to 40% reduction of greenhouse gas emissions in 2020 compared to 1990. The ECtHR could clarify states’ human rights obligations in regard to climate change in the Swiss case.
Overall, the Senior Women for Climate Protection Switzerland case raises several questions in regard to the application of the ECHR and, more generally, to a human rights approach to climate change. Is the Swiss negligence of the reduction of greenhouse gas emissions causal for the impacts which the applicants suffer? How can the state’s obligations in case of a global issue such as climate change be defined? Are international environmental regimes and human rights law intertwined in such a way that climate change regimes such as the Paris Agreement can be applied in order to determine a state’s obligation? All these questions show that the present case has a lot of potential for important answers in regard to a human rights approach to climate change, as Bähr and others have already stated. Indeed, the Swiss case before the ECtHR will very likely point the European way in climate change and human rights matters.
Alina Holzhausen is a PhD student at the University of Aberdeen researching Climate Change Litigation and Human Rights.