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    ECHR Ruling Exposes European States to Climate Change Litigation

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    Stockholm (NordSIP) – On April 9th, the European Court of Human Rights (ECHR) ruled (mainly) in favour of the Association of Senior Women for Climate Protection Switzerland (Verein KlimaSeniorinnen Schweiz) in a case brought to the Court regarding the failure of Switzerland to mitigate climate change.

    The ruling sets a precedent as to whether and to what extent states with an inadequate climate policy violate their duty to protect human rights. Climate change activists and sustainable investors looking to engage with state and private entities should consider the legal details of the cases ruled on this day to ensure successful outcomes.

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    Verein KlimaSeniorinnen Schweiz and Others v. Switzerland

    The main claim from the Swiss association was that Swiss authorities had failed to mitigate the effects of climate change and global warming, which they argued adversely affects their lives, living conditions and health. In particular, they complained that the Swiss state had failed to introduce suitable legislation and to put appropriate and sufficient measures in place to attain the targets for combating climate change, in line with its international commitments.

    The relevance of these facts for the association were enhanced by the fact that people above the age of 55 are particularly at risk of dying from heat-related illnesses, a risk that is even higher for older women than men. Beyond these issues, the plaintiffs also noted that they had not had appropriate access to a court, noting that domestic courts had not properly responded to their requests and had given arbitrary decisions affecting their civil rights.

    In its ruling, the Court held that there had indeed been a violation of the right to respect for private and family life and that there had been indeed been a violation of the right to access to the court. The ECHR found that the Swiss Confederation had failed to comply with its duties under the Convention concerning climate change.

    Implications

    The ruling in favour of the Swiss association sets a precedent for the 46 countries that are members of the ECHR and opens them to litigation along the same lines. It is hoped that as a consequence national governments will have to start taking the threat of climate more seriously.

    Beyond the ruling in favour of the association, the ECHR made a number of important associated statements. One of them is about the factual truth of climate change and the insufficient efforts of ECHR member states to address it.

    “The Court found it to be a matter of fact that there are sufficiently reliable indications that anthropogenic climate change exists, that it poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention, that States are aware of this and capable of taking measures to address it effectively, that the relevant risks are projected to be lower if the rise in temperature is limited to 1.5°C above pre-industrial levels and if action is taken urgently. It noted that current global mitigation efforts are not sufficient to meet that target,” the Court said. [emphasis added]

    “The Court found that Article 8 of the Convention encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life,” the ECHR added.

    Other Cases

    This was one of three climate change-related cases that the ECHR ruled upon on the same day, and the only one that was met with success. The other two cases, Carême v. France and Duarte Agostinho and Others v. Portugal and 32 Others, were dismissed by the Court. However, the discussion of the demerits of these cases should also prove informative for future climate change litigation.

    The case against the French state was a complaint by a former mayor of the municipality of Grande-Synthe, who argued that France has taken insufficient steps to prevent global warming and that this failure entails a violation of the right to life and the right to respect for private and family life. The ECHR ruled this application inadmissible, arguing that the French mayor did not have victim status within the meaning of Article 34 of the European Convention on Human Rights, the treaty governing the ECHR.

    The case brought by Duarte Agostinho and other Portuguese youth concerned the current and future severe effects of climate change, which the applicants attribute to the respondent States, and which they claim impact their lives, well-being, mental health and the peaceful enjoyment of their homes.

    This issue last came up in September 2023, when six Portuguese youths who sued 33 European countries for failing to fight climate change. The youths, supported by the Global Legal Action Network (GLAN) and Youth4ClimateJustice, argued that the European Convention on Human Rights imposes a duty on signatory states to take concrete actions to reduce CO2 emissions and fulfil their 2015 Paris Agreement commitments.

    The Court found that there were no grounds in the Convention for the extension of the extraterritorial jurisdiction of the respondent States other than Portugal in the manner requested by the applicants. This is tantamount to saying that the citizens were Portuguese so their complaint should only be applicable to the Portuguese State. Since the applicants had not pursued any legal avenue in Portugal concerning their complaints, the ECHR found the complaint against Portugal was also inadmissible due to a “non-exhaustion of domestic remedies”. For these reasons, the Court declared the applications lodged against Portugal and the other States on the issue of climate change inadmissible.

    Filipe Albuquerque
    Filipe Albuquerque
    Filipe is an economist with 8 years of experience in macroeconomic and financial analysis for the Economist Intelligence Unit, the UN World Institute for Development Economic Research, the Stockholm School of Economics and the School of Oriental and African Studies. Filipe holds a MSc in European Political Economy from the LSE and a MSc in Economics from the University of London, where he currently is a PhD candidate.
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