Environment
European Court of Human rights passes ruling on State’s responsibility on the environment
On 9 April 2024, the European Court of Human Rights passed a landmark judgment on the responsibility of States concerning climate change impact on its citizens. The Verein Klimaseniorinnen Schweiz And Others V. Switzerland ruling based its reasoning on Article 8 of ECHR, regarding the right to private and family life, as the Court ruled that States have a positive obligation to implement sufficient measures to combat climate change and that individuals have a right to effective protection by the State authorities from the adverse effects that climate change has on the health, well-being and quality of life.
The applicants are Verein KlimaSeniorinnen Schweiz, a non-profit association whose goal is to promote and implement effective climate protection on behalf of its members – senior women living in Switzerland who are over the age of 70, with the rest of the applicants being seniors who are members of the association. The complaints put forth by the applicants concern restrictions that the extreme heatwaves that Europe has experienced in the last decade impose on them – inability to leave their houses, lethargy, and flaring of underlying health issues.
The legal remedy that the applicants were seeking concerned compelling the State to achieve its greenhouse gas emission targets so that it would hold the increase in global average temperature at most above 2°C above pre-industrial levels. The annual temperature in Switzerland had increased around 2.1°C since 1864, with the five warmest summers on record happening since 2003. This has led to an increase in heat-related mortalities, particularly among the elderly population, with 2022 experiencing a notable spike in such deaths.
In 2020, Switzerland’s per capita greenhouse gas (GHG) emissions stood at 5.04 tonnes of CO2 equivalent, with total domestic GHG emissions amounting to 43.40 Mt CO2e. This data, however, does not account for emissions related to international aviation. The State also has very high consumption based GHG emissions stemming from imported goods. The Swiss Federal Office for the Environment (FOEN) estimated that this, along with emissions tied to financial flows from the country’s investment sector, contributes to a potential global warming of 4-6°C.
On the legislative and policy front, Switzerland’s actions towards climate change mitigation have been critiqued for insufficient progress and alignment with international goals. Despite setting reduction targets in domestic law, such as a 20% reduction below 1990 levels by 2020 and proposals for further reductions by 2030, these efforts have been deemed inadequate in meeting the required limits to curb global warming to 1.5°C. The rejection of the CO2 Act 2020 and the lack of comprehensive integration of international Nationally Determined Contributions (NDCs) into domestic law highlight the challenges within Swiss policy frameworks. The Climate Action Tracker rates Switzerland’s efforts as insufficient, pointing out the necessity for substantial improvements and a drastic increase in emission reduction commitments. Moreover, the strategy of relying on purchasing emission reductions abroad and delayed domestic action could necessitate aggressive reduction measures post-2030, complicating the goal of achieving net zero emissions by 2050.
As the Court notes, for Article 8 to apply in context of environmental issues, two conditions must be met – there must be an “actual interference” regarding the enjoyment of their private or family life or home, and it must reach a certain threshold of severity. The severity must significantly exceed that of the environmental hazards that modern cities inherently have. The court found that, considering the vulnerability of seniors to adverse environmental effects, that threshold has indeed been exceeded, due to the negligence of the State in failing to uphold its positive obligations. The key issue concerned the failure of the State to meet the targets that they had set, for example with the 2011 CO2 Act that required that by 2020 greenhouse gas emissions be reduced by 20% compared to 1990 levels. Furthermore, the lack of a specific carbon budget, something that the Court considered essential for a proper regulatory framework, was a contributing factor for the decision.
The Court ruled 16-1 that there had been a violation of Article 8 of ECHR. The interesting component here is the partly concurring partly dissention opinion of Judge Eicke, whose disagreement amounts to “well beyond a mere difference in the assessment of the evidence or a minor difference as to the law. The disagreement is of a more fundamental nature and, at least in part, goes to the very heart of the role of the Court within the Convention system and, more generally, the role of a court in the context of the unique and unprecedented challenges posed to humanity (including in but also across our societies) by anthropogenic climate change.” The Judge continues with finding that the Court has unnecessarily expanded the concept of “victim” under the ECHR and that has created a new right under Article 8 – that the State is responsible for safeguarding its citizens from adverse effects of climate change and has now a primary duty to implement legal frameworks to safeguard such victims.
The issue that the Judge sees here is that the Court has no fundamental understanding of whether a State has fulfilled its obligations under the new Article 8 – as the Court lacks any technical expertise in an area that requires global cooperation, it is ill-equipped to make decisions on fighting climate change. In addition, the Courts processes are far too slow to combat an issue that requires immediate response, as it cannot effectively review climate legislation or policy. Furthermore, by directing such discourse towards the ECtHR, attention is diverted from essential mitigation efforts.
This highlights a broader concern with fighting climate change that we globally have experienced in recent decades. Neither consumers nor businesses are willing to change their consumption habits to a significant extent – whether it concerns transportation, eating habits, single-use products, packaging, fast fashion or anything else – consumers want to consume as much as possible, as conveniently as possible, for as little as possible. Businesses want to offer as much as possible for as much profit as possible. Trash is largely not sorted nor is it possible to recycle most plastics that we produce, which makes European countries just ship it out of the continent. States are partially indifferent towards mitigating climate issues as that would strongly impact their tax base and any party who would radically want to reform consumption would quickly be voted out.
This has meant that judges have in recent years started to make significant rulings on climate change. A few years ago the Hague District Court ordered Royal Dutch Shell to reduce their CO2 emissions by net 45% by 2030, compared to 2019 levels. Now we are seeing States being held responsible for the failures to meet certain climate targets.
While climate change is by far the most impactful issue that the world has ever experienced, the ruling and the partial dissent highlights how nobody wants to really undertake any significant changes. The fact that such a change is being imposed by the courts is worrying due to the inefficiencies of the process. Meanwhile the European Commission has been forced to significantly concede its environmental goals with the agricultural sector, the fashion sector is slowly but surely expanding, and the EU is still producing massive amounts of meat and dairy products – with EU per capita consumption of dairy in 2021 exceeding over 100kg per year and yearly meat consumption hovering around 68kg per capita. Considering this, it is puzzling how the European Court of Human Rights can even assess whether a State meets its environmental goals, if our whole post-war system is designed to produce as much emission-producing products as possible.
