Not binding in Australia, but one to watch 7 min read
The European Court of Human Rights (the ECHR) recently delivered a decision concerning the human rights impacts of climate change in Verein KlimaSeniorinnen Schweiz and Others v Switzerland (European Court of Human Rights, Grand Chamber, Application No 53600/20, 9 April 2024) (Verein). On 9 April, the ECHR ruled that Switzerland's efforts to address climate change are insufficient and contravene certain human rights recognised under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).
In parallel with its decision in Verein, the ECHR also delivered judgments on similar claims in Carême v France (European Court of Human Rights, Grand Chamber, Application No 7189/21, 9 April 2024) (Carême) and Duarte Agostinho and Others v Portugal and 32 Others (European Court of Human Rights, Grand Chamber, Application No 9371/20, 9 April 2024) (Duarte Agostinho).
In this Insight, we explore the recent decision, highlighting the increasing focus on the intersection of climate change and human rights.
Key takeaways
- In Verein, the ECHR ruled that Switzerland's efforts to address climate change are insufficient and are in contravention of certain human rights recognised under the Convention, including Article 8 which enshrines each person's right to respect for their private and family life (among other things).
- The ECHR dismissed the complaints brought in Carême and Duarte Agostinho on the bases that in Carême, the applicant did not possess standing under the Convention, and in Duarte Agostinho, the applicants had failed to pursue or exhaust domestic legal remedies.
- These decisions highlight an increasing focus on the relationship between climate change and human rights impacts, and the potential for breaches of international law in this space. While Australia is not bound by the decision, Verein is still likely to resonate with local stakeholders with an interest in holding governments accountable for the effects of climate change and associated human rights impacts.
Background – Verein
Prior to commencing proceedings in the ECHR, the applicants in Verein had pursued actions before Swiss authorities and courts, although these actions were dismissed for lack of standing.
In the ECHR proceeding, the applicants argued:
- Both the applicant association and individual applicants had relevant standing.
- Switzerland contravened Articles 2 and 8 of the Convention (among others) in failing to implement a regulatory framework that sufficiently addressed the effects of climate change, including through emissions reduction targets. The applicant association alleged Switzerland was responsible for emissions generated not only within its territory but also through the import of goods into, and their consumption within, its territory ('embedded emissions').
- All applicants' right of access to a court had been infringed when Swiss courts dismissed their complaints without assessing their merits.
Decisions
The ECHR decided the following:
- The applicant association possessed victim status (ie standing) to pursue a claim under Article 8, but not Article 2, of the Convention. However, the individual applicants did not have standing, as they failed to demonstrate they were subject to a high intensity of exposure to the adverse effects of climate change such that there was a pressing need to ensure their protection.
- States are responsible for global emissions, whether or not generated within their territorial jurisdiction, on the basis that all States have common responsibilities for addressing climate change under the United Nations Framework Convention on Climate Change (UNFCCC)), whether or not they are signatories to that convention.
- In line with the UNFCCC and the Paris Agreement, effective respect for Article 8 requires States to implement regulations and measures aimed at reducing their emissions levels with a view to reaching net zero emissions in the next 30 years, while also avoiding serious and irreversible adverse effects on human rights. Although States have broad discretion to determine the means by which they implement regulations and measures, they must consider taking steps such as:
- adopting measures specifying a target date for achieving carbon neutrality—the ECHR noted that while Switzerland had a neutrality target of 2050, there were critical gaps in how it proposed to achieve this target (see criteria (b) below);
- setting intermediate emissions reduction targets and pathways capable of meeting emissions reduction goals in time—the ECHR held there were 'critical lacunae' in Switzerland's implementation of a regulatory framework, including on the basis that: it failed to pass legislation which would have enhanced the country's interim emission reduction targets; it did not have a specific carbon budget; and it had not legislated a clear pathway for longer term emissions reduction. The ECHR also criticised recently enacted Swiss legislation that sets interim targets but does not include any 'concrete measures' for achieving those targets;
- demonstrating they are complying, or in the process of complying, with emissions reduction targets—the ECHR noted that Switzerland had recognised it missed its own emissions reduction target for 2020; and
- acting in good time when implementing the above measures—the ECHR held that Switzerland's legislative framework was insufficient to achieve its stated climate objectives in the short or long term.
- In relation to the applicants' right of access to a court, Switzerland had infringed the association's, but not the individuals', right.
In November 2018, the applicant in Carême requested that the French President and Prime Minister (among others) take all necessary measures to curb France's emissions to comply with its emissions reduction commitments. In January 2019, the applicant applied to France's Conseil d’État for judicial review of an alleged rejection of his requests. The Conseil d’État ordered the French authorities to take additional measures to achieve emissions reduction targets.
The applicant filed an application with the ECHR in January 2021, claiming France had violated his rights under Articles 2 and 8 of the Convention on the basis that France failed to take sufficient steps to prevent climate change and had increased the risk of future flooding and coastal erosion in his former home municipality.
The ECHR held the application was inadmissible as the applicant had no standing under Article 34. The applicant had no link to the alleged climate-change risks threatening his former home municipality in circumstances where he had moved to Belgium, and did not own or rent property in the municipality.
In September 2020, six Portuguese nationals filed an application against Portugal and 32 other States for violating their rights under Articles 2, 3, 8 and 14 of the Convention. Unlike in Verein and Carême, the applicants in Duarte Agostinho had not pursued any domestic legal remedies.
The applicants alleged that Portugal and other States were responsible for current and future impacts of climate change upon Portugal, as the States controlled, but had failed to regulate, their territorial emissions-generating activities that were affecting Portugal. The ECHR rejected this argument and held the applicants' claim could only proceed in relation to Portugal's own emissions-generating activities.
Ultimately, the ECHR dismissed the application on the basis that the applicants had not pursued or exhausted domestic legal remedies. The ECHR also rejected arguments that there were no effective remedies in Portugal or other States, and that there were special circumstances excusing the applicants from pursuing domestic remedies.
What's next?
These decisions highlight the increasing focus on the intersection of climate change and human rights. In particular, Verein demonstrates that governments may contravene internationally recognised human rights should they fall short of their commitments to address and mitigate climate change impacts.
While these decisions are only binding on signatories to the Convention, they will likely resonate in other jurisdictions where there is growing public interest in holding governments accountable for the effects of climate change and associated human rights impacts. In the Australian context, a similar right to not have one's family and home unlawfully or arbitrarily interfered with is recognised under Queensland, Victorian and ACT human rights legislation, and was successfully relied upon in a recent challenge to a mining lease approval.1 It is expected that the focus on this space will only continue to grow, given the recent parliamentary report recommending that Australia establishes a federal Human Rights Act.
Footnotes
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Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21.