In what is being hailed by climate campaigners as a landmark judgment, the European Court of Human Rights (ECtHR) recently confirmed that state failure to deal with climate change is a human rights issue. In Verein KlimaSeniorinnen Schweiz and Others v Switzerland [2024], a Swiss association representing its membership of more than 2,000 older women (a third of whom are over 75) claimed that state inaction on climate change had negative impacts on their health and living conditions.
The ECtHR found that Switzerland failed to comply with its climate change convention obligations, which required action to mitigate the effects of climate change.
Contemporary environmental justice is predicated on the ability to achieve just remedies for environmental harms. Legal recognition of the problems of climate change and the impact of pollution are integral to achieving effective judicial remedy and resolution.
Rights-based claims
Climate litigation takes various forms, including public and private nuisance claims, constitutional claims, planning law claims and pro-regulatory claims intended to force regulators to take steps to reduce greenhouse gases by changing corporate behaviour.
The recent Dieselgate claims, for example, saw class actions and regulatory action aimed at addressing pollution by the motor industry. However, rights-based claims have emerged as an effective climate justice tool, drawing on notions of social, racial and environmental justice. Where constitutional rights protections are combined with judicial activism in rights protection, NGOs have become active as litigants in countries such as India, South Africa and throughout Latin America, whereas individuals have brought rights claims in Europe.
Increasingly, legal action considers government failure to address climate change. For example, Leghari v Federation of Pakistan [2015], a case heard before the Lahore High Court, involved the successful use of a violation of rights claim as the legal foundation of a climate suit. Leghari claimed that climate change posed a serious threat to water, food and energy security in Pakistan and so offended fundamental rights safeguarded under Pakistan’s 1973 Constitution, namely the right to life (Article 19), right to dignity of person and privacy of home (Article 14), and the right to property (Article 23). The court ruled the government was violating the National Climate Change Policy of 2012 and the Framework for Implementation of Climate Change Policy (2014-2030) by failing to meet goals set by the policies. The government was directed to ensure implementation of the framework through the establishment of an expert climate change commission with NGO, governmental and technical experts.
A 2021 United Nations report identified an increase in climate change litigation to 1,550 cases in 38 countries (39 including the EU courts). Increasingly, the climate emergency is framed as a human rights issue which the courts are required to address.
European Court’s Swiss case
In Verein KlimaSeniorinnen Schweiz and Others v Switzerland [2024], the ECtHR found that Article 8 of the European Convention on Human Rights (ECHR) provides for a right to effective protection by the state from the serious adverse effects of climate change on lives, health, wellbeing and quality of life. The court dismissed claims made by four individual applicants as inadmissible because they did not meet the victim-status criteria of Article 34. But the association that brought the case was considered to have the right (locus standi) to bring a complaint arising from the threats caused by climate change on behalf of those individuals who could claim to be subject to specific threats or adverse effects of climate change on their life, health, wellbeing and quality of life.
The ECtHR concluded that Switzerland failed to meet its positive obligations under the climate change convention, including a failure to quantify national greenhouse gas emissions. Switzerland also failed to act in time and in an appropriate way to implement the relevant legislation and measures to address climate change.
The ECtHR also found that action by the Swiss domestic courts who rejected domestic legal action brought by the association bringing the case breached Article 6 of the ECHR (right to a fair trial). The legal action had first been rejected by an administrative authority and then twice by national courts. This amounted to an interference with the right of access to a court. The ECtHR said that the national courts had failed to provide convincing reasons why they failed to examine the merits of the complaints. Crucially, the ECtHR found that the Swiss courts failed to take into consideration the compelling scientific evidence concerning climate change, reiterating that domestic courts have a key role to play in climate change litigation.
The court ordered Switzerland to pay costs of €80,000. While the court did not specify specific measures that the Swiss authorities now need to take, the judgment will likely lead to a review of climate change policies to avoid further legal action.
Creative way forward?
Such cases allow individuals to sue states for climate change action failures that directly impact on their human rights, rather than relying on litigation under climate change or environmental legislation. Rather than seeking to pursue individual companies or industries for their polluting activity, state failure to deal with climate change can be directly targeted and assessed by the courts. Potentially, this is a more effective form of climate justice because it directly considers the harms suffered by individuals and recognises climate change not just as an environmental policy issue but as a human rights issue requiring state action. In this regard, creative climate change litigation offers considerable potential to address and explore climate change issues.
Dr Angus Nurse is professor of law and environmental justice at the Centre for Access to Justice and Inclusion, Anglia Ruskin University
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