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Strasbourg court’s Swiss climate ruling could
have global impact, say experts
Decision by European court of human rights around
vulnerability of older women to heatwaves marks significant shift
Isabella
Kaminski
Sat 13 Apr
2024 05.00 BST
A landmark
legal ruling at the European court of human rights could open the floodgates
for a slew of new court cases around the world, experts have said.
The
Strasbourg-based court said earlier this week that Switzerland’s failure to do
enough to cut its national greenhouse gas emissions was a clear violation of
the human rights of a group of more than 2,000 older Swiss women. The women
argued successfully that their rights to privacy and family life were being
breached because they were particularly vulnerable to the health impacts of
heatwaves.
It was the
first time the court, which is responsible for interpreting the European
convention on human rights, a treaty signed by all members of the Council of
Europe, had ruled on a climate change-related matter.
Lawyers,
academics and campaigners will be poring over the 250-page judgment for months
to come. But it is already clear that it marks a significant shift in the role
that courts will play in addressing the climate crisis and how states will have
to respond.
“The court
really recognised that it cannot be that because everyone is affected no one
has the right to seek justice for climate harm,” said Nikki Reisch, climate and
energy director at the Center for International Environmental Law. “And it
acknowledged that because of the clear impacts of climate change on human
rights there is a basis for victims to make claims.”
The
17-judge panel did not prescribe exactly what Switzerland should do to address
the problem, leaving it to the Council of Europe’s committee of ministers to
come up with a solution.
But it did
lay out minimum governance standards that states should have “due regard” to,
such as setting carbon budgets and interim targets, keeping these updated and
based on the best available evidence, and being transparent about how well they
are being met.
Reisch
said: “What the court did quite clearly was to say that, while the Swiss
government retains some discretion to define the precise measures it will take,
that discretion is not unfettered; it has to be within the bounds of what
science shows is clearly required to prevent further harm.”
The ruling
has not received an entirely glowing welcome. The rightwing Swiss People’s
party accused the court of overreach and called for Switzerland to leave the
Council of Europe.
There was a
similar backlash in the UK from some politicians and rightwing media. The
energy secretary, Claire Coutinho, wrote on X that she was concerned by the
decision. “How we tackle climate change affects our economic, energy, and
national security,” she said. “Elected politicians are best placed to make
those decisions.”
In
response, Jessica Simor KC, who represented the Swiss women in court, pointed
out that the UK government maintains it has plans and policies to meet its
legally binding carbon budgets. “If so, it is complying with its obligations.
If not, it is acting contrary to the will of elected representatives,” she
wrote.
Reisch
said: “Governments that sought to shield their action or inaction from the
court’s scrutiny … may be critical of such a decision.
“But what
is really striking in this case is that you have 17 judges from many different
countries, perspectives and legal backgrounds and this was a near unanimous
decision.”
The only
dissenting opinion was from the UK judge Tim Eicke, who argued that the rest of
the panel “tried to run before it could walk” and “went beyond what was
legitimate”.
The
remaining judges appear to have been conscious of such criticism, noting that
judicial intervention cannot replace legislative and executive action.
“However, democracy cannot be reduced to the will of the majority of the
electorate and elected representatives, in disregard of the requirements of the
rule of law,” they state in their ruling.
Corina
Heri, a postdoctoral researcher at the University of Zurich, noted that
although this was the first time the court had ruled specifically on climate
change, it has a long history of dealing with environmental cases. “These are
cases where the environment of the home is affected by things like noise,
pollution, garbage, cases about toxic industrial emissions and other things
where people’s health is threatened. It’s something that the court has gotten
more and more willing to engage with over time.”
“They did
not overstep their bounds,” said Reisch, “but affirmed the vital role of courts
in enforcing the legal obligations of states in preventing environmental harm.”
The ruling
opens the way for several climate-related lawsuits that had been adjourned at
the court. One brought by Greenpeace Nordic against the Norwegian government
seeks to prevent the expansion of fossil fuel extraction in the Arctic. Another
is being brought by an Austrian man with a temperature-dependent form of
multiple sclerosis who argues, like the Swiss women, that this makes him
particularly vulnerable to heatwaves.
It is also
expected to bolster ongoing lawsuits around Europe.
The UK’s
high court recently allowed Friends of the Earth and two individuals affected
by the impacts of climate change to challenge what they describe as the
government’s “inadequate” climate protection strategy. A two-day hearing into
the national adaptation plan will take place in June.
Will
Rundle, head of legal for Friends of the Earth, said it had similarities with
the Swiss lawsuit “not least because our case also deals with deficient state
action on climate and its adverse impact on health and human rights”.
In previous
decisions, UK judges noted that the European convention had not yet been
applied to climate change, suggesting they will now have to consider the issue
in a fresh light.
Experts
believe the latest ruling opens the floodgates for future litigation around
Europe.
Although
the judgment applies directly only to Switzerland, it has clear implications
for other states within the Council of Europe that have not set ambitious
emission reduction targets or put in place good climate governance.
“All of
these countries are subject to the same obligation,” says Reisch. “Where
there’s a gap between their climate measures and what science shows is
necessary to protect human rights, they will have to act to close that gap or
face legal consequences.”
Reisch
added that the court had put to bed the “drop in the ocean” argument, where
governments seek to downplay their contribution to global climate change.
The
decision is also expected to invigorate ongoing political discussions around
amending the convention to recognise the right to a clean, healthy and
sustainable environment.
The ruling
will make international waves if it is cited in forthcoming advisory opinions
on climate change from the international court of justice and the
inter-American court of human rights.
And it may
even influence litigation outside European borders, because courts are
increasingly having to handle questions of state responsibility beyond national
borders and are looking at other jurisdictions for guidance in how to handle
climate lawsuits.
Kelly
Matheson, deputy director of global climate litigation at Our Children’s Trust,
said: “Courts in the US are trying to dismiss these sorts of cases. Or they’re
saying this is not our job, this is the job of the other two branches of
government. So I think that statement will have influence in US litigation.”
Our
Children’s Trust, a non-profit organisation, has orchestrated many high-profile
youth-led lawsuits across the US including last year’s successful case in
Montana and submitted third-party scientific briefs in the cases before the
Strasbourg court.
“The
European court of human rights has now said in unequivocal terms that courts
have a role to play,” said Matheson.
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