Introduction
In the landmark case of Verein KlimaSeniorinnen Schweiz and Others v Switzerland, the European Court of Human Rights (ECtHR), by a majority, enunciated principles on “victim/standing status” and explored the intersection between the Convention’s rights and the climate crisis. Substantively, in view of its finding that Article 8 (right to private and family life) applied to the applicant association’s complaint, the Court decided not to examine the case from the angle of Article 2 (right to life) (para 537). Still, however, the Court meaningfully contributed to the discourse pertaining to the intersection of climate change and right to life. In particular, this post shows how the Court enunciated a liberal “foreseeable risk” standard for establishing a right to life violation in climate change context marking a segue from the “imminent and foreseeable threat” standard [Part I]. In doing so, this post argues that the ECtHR went ahead of the UN Human Rights Committee (HRCttee) whose efforts to deal with climate crisis has been undercut by the restrictive interpretation of Article 6 (right to life) of the International Covenant on Civil and Political Rights (ICCPR), [Part II]. There, however, remains a confusion, this post spells out through to the end, as to whether the liberal standard applies to (climate) refugee cases [Part III].
The Verein Klimaseniorinnen Court and the Right to Life
The applicants in Verein KlimaSeniorinnen were members of an association comprised of senior Swiss women who complained about health problems caused by heatwaves that significantly affected their lives, living conditions and well-being. In this context, the applicants complained of various failures of the Swiss authorities to mitigate the effects of climate change— and in particular, the effects of global warming. They particularly claimed the failure of the Swiss Confederation to protect life effectively (Article 2), among others.
The Court did not grant the individual applicants standing. The Court, however, established the principle that individuals have standing in climate change mitigation cases only if there is a high intensity of exposure to the adverse effects of climate change and a pressing need to ensure the applicant’s individual protection (paras 478-488). Not granting standing to the individual applicants got translated into not examining the case from an Article 2 angle. However, the Court did not entirely lose out on the opportunity to discuss Article 2. The Court noted (para 509) that ‘complaints concerning the alleged failures of the State to combat climate change most appropriately fall into the category of cases concerning an activity which is, by its very nature, capable of putting an individual’s life at risk’.
In the Court’s words:
in order for Article 2 to apply to complaints of State action and/or inaction in the context of climate change, it needs to be determined that there is a “real and imminent” risk to life. However, such risk to life in the climate-change context must be understood in the light of the fact that there is a grave risk of inevitability and irreversibility of the adverse effects of climate change, the occurrences of which are most likely to increase in frequency and gravity. Thus, the “real and imminent” test may be understood as referring to a serious, genuine and sufficiently ascertainable threat to life, containing an element of material and temporal proximity of the threat to the harm complained of by the applicant (para 513).
This indeed marked a significant segue from a “real and imminent risk” to a “reasonable risk or threat” standard for establishing right to life violations in the context of climate change. The “real and imminent risk” standard is difficult to be met in cases such as Verein KlimaSerionnen where a threat or risk to life is anticipated, and not otherwise imminent within an immediate timeframe. In general, the finding of a right to life violation has been quite difficult in climate change cases. In Kolyadenko and Others v Russia (2012), for instance, “imminence” of risk for purposes of establishing Article 2 violations in the context of a flood was determined by reference to whether applicants were present or absent when their homes were being flooded.
In Judge Eicke’s (dissenting) view, this segue was marked by a “first yet questionable” approach. Eicke opined that the effects of climate change are plainly too remote in Verein KlimaSeniorinnen to be capable of engaging Article 2, particularly because the majority did not seek (or was unable) to establish the “highly exceptional circumstance” justifying the need for an exception to the traditional “victim/standing” test. Engaging with the violation of Article 2, in his opinion, amounted to creation of a new right and a new corresponding duty on part of the State—ones that the Convention never quite envisioned. However, in taking this “first” approach to the right to life in the context of climate change, the Court took a significant stride in addressing climate change from a human rights perspective.
The Intersection of Climate Crisis and the Right to Life: Going Ahead of the HRCttee’s Approach
In general, the HRCttee observes that the right to life cannot be properly understood if it is interpreted in a restrictive manner, and that the protection of the right, among others, requires State parties to adopt positive measures. Instructive here is the General Comment No. 36, where the HRCttee established that the right to life of individuals encompasses the right to enjoy a life with dignity and ‘to be free from acts or omissions that would cause their unnatural or premature death’. Further, the HRCttee observed that environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life (General Comment No. 36, para 62). It was categorically observed in Portillo Cáceres et al. v Paraguay and Toussaint v Canada that the States parties’ obligation to respect and ensure the right to life extends to ‘reasonably foreseeable threats and life-threatening situations’, which can result in loss of life. Indeed, in Portillo, the Committee opined that States parties may be found in violation of Article 6 of the ICCPR even if such threats and situations do not result in the loss of life. However, these observations have largely been rhetorical, as is evidenced from majority opinions of the HRCttee in recent individual communications.
In Billy v Australia, for instance, the HRCttee observed that without national and international efforts, the effects of climate change may expose individuals to a violation of their right to life under Article 6 of the ICCPR. Furthermore, the HRCttee observed that given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity. These assertions again remained rhetorical because in view of the Committee, the authors failed to indicate that they faced or at that time were facing:
adverse impacts to their own health or a real and reasonably foreseeable risk of being exposed to a situation of physical endangerment or extreme precarity that could potentially threaten their right to life, including the right to life with dignity.
Hence, even though the applicants could convey a sense of insecurity engendered by climate change (e.g., loss of predictability of seasonal weather patterns, seasonal timing, tides, and availability of traditional and culturally important food sources), the violation of Article 6 was not found because, the HRCttee did not find itself in a position to conclude that measures taken by Australia would have been insufficient so as to present a direct threat to the authors’ right to life with dignity. Thus, in essence, the majority opted for “real and imminent risk” standard.
The majority’s opinion in Verein KlimaSeniorinnen with regard to substantive violation of Article 2, however, sides with the partially dissenting joint opinion (by HRCttee members Arif Bulkan, Marcia V. J. Kran and Vasilka Sancin) that found a violation of right to life. They observed that the employment of “real and foreseeable risk” standard interprets Article 6 unduly restrictively. In Billy, per the dissenters, the primary question was whether the alleged violations of Article 6 themselves ensue from inadequate mitigation and/or adaptation measures on climate change by the State party. A more accurate standard instead is whether there is “a reasonably foreseeable threat” to the applicants’ right to life. The applicants in Billy mentioned flood related damage, water temperature increases, loss of food sources, and most importantly, explained that the islands they live on will become uninhabitable in a mere 10-15 years as per research conducted by a government body. Together, this evidence provides “a reasonably foreseeable threat” constituting a violation of Article 6, the HRCttee members opined.
There is still something left to be seen, however. The Verein KlimaSeniorinnen was not a (climate) refugee status determining case, neither was Billy v Australia so. Instructive here is Ioane Teitiota v New Zealand, which was a case involving the determination of climate refugees’ status, and where the HRCttee adopted a stricter approach to right to life by observing that:
claiming to be victims of an Article 6 violation, individuals must demonstrate that the State party’s actions resulted in violation of their right to life that is specific to such individuals or presented an imminent or existing threat to the enjoyment of right to life.
Tellingly, while preferring a liberal approach to the right to life violation in climate change contexts, the Billy dissenters viewed Ioane Teitiota as a “dissimilar context” since it was a refugee case. They did not readily side with Muhmuza’s dissenting view in Teitiota, who did find a real, personal, and reasonably foreseeable risk of a threat to the author’s right to life as a result of the conditions in Kiribati. Now it is to be seen whether the Verein KlimaSeniorinnen’s majority opinion on the threshold of the right to life violation will be applied to or inspire refugee cases as well.
Conclusion
In general, within the emerging jurisprudence on climate change and human rights, the missing plank indeed had been the un- or under-explored intersection between climate change and right to life. The ECtHR utilised the opportunity to contribute to the discourse by taking, at least on surface level, an Article 2 angle (even while not taking an Article 2 angle, in the Court’s opinion). Indeed, the ECtHR made a significant contribution to the discourse on climate justice by opting for a liberal “foreseeable risk” standard for establishing a right to life violation in climate change context. In doing so, the Court has surpassed the approach of the UN Human Rights Committee, which is characterised by a rather restrictive “imminent and foreseeable risk” standard. It is now to be seen how far the majority observations inspire the climate change jurisprudence across jurisdictions and globally across various climate cases.
Psymhe Wadud BCL (Oxon), teaches International Human Rights Law at the University of Dhaka.
Well written