By Lianne Baars and Jolein Holtz
Introduction
The 9th of April 2024 was marked in the agenda of many human rights and climate experts and activists as the European Court of Human Rights (Court) issued its first climate rulings in the three cases that the Court had fast-tracked: Duarte Agostinho and others v. Portugal and 32 others, Carême v. France, and Verein KlimaSeniorinnen Schweiz and others v. Switzerland. Although the former two were found inadmissible, the Court did find violations of Articles 8 and 6(1) in the KlimaSeniorinnen case. KlimaSeniorinnen is therefore hailed by many as a landmark victory with far-reaching implications and an important win for climate justice. While the case contains many interesting facets, this blog highlights two: its rather revolutionary argument on standing and its approach to the right to life, in relation to their positive and negative implications for future climate litigation.
KlimaSeniorinnen was brought by, and on behalf of, elderly Swiss women claiming to be disproportionately impacted by climate change through, most notably, increased heat-related mortality tied to their old age. Due to its jurisdictional scope, as well as its exhaustion of domestic remedies, the case seemed the “simplest” climate case on the Court’s docket, solely invoking the “typical” climate difficulties, among which, most notable in this context, causality and victimhood.
Victim Status
The nature of climate change causes difficulties in fulfilling the stringent individual harm standard required under Article 34 of the European Convention on Human Rights (ECHR/Convention). Put crudely, everyone, everywhere is affected by climate change, though certain groups more than others, and these cases will benefit the public at large. Yet, the Court has categorically rejected the notion of actio popularis. Indeed, it spares no paragraphs to emphasize this (paras 460, 481, 484, 488, 500 and 501). This overcompensation might be related to its ultimate finding of standing of the NGO KlimaSeniorinnen, which appears to do exactly that: admitting actio popularis claims.
The main rule of standing is that there must be a causal link between applicant and harm sustained by the rights violations, while agreeing that the climate context may warrant a ‘special approach’ (para 479) to not render its rights protection ‘ineffectual and illusory’ (para 461). It distinguishes two types of standing, for the individual and for the association, respectively. Here, it must be emphasized that the Court previously has vehemently held associations to the same narrow standard of individual affectedness (paras 473, 474).
For individuals, the Court does not stray much from its approach in environmental cases, applying a high threshold of direct and personal affectedness by requiring victims to
- be severely impacted by the State’s (in)action; and
- have a pressing need for their protection that is tied to the inadequacy of reduction measures for harm.
The Court concluded - as it did in Carême - that the individual applicants did not meet this threshold as their interests were not specific and severe enough, as compared to the general population (and allowing their claim would, thus, be actio popularis).
It did, however, find standing of the association KlimaSeniorinnen. Referencing the Aarhus Convention, it identifies a central role for environmental associations in litigating on behalf of affected persons. Combined with the qualification of climate change as a common concern of humankind and the role of intergenerational equity, the Court concludes that associations can have standing in the climate context. They must, however
- be lawfully established in the respective jurisdiction and have standing there;
- pursue their statutory purpose and act in defense of members’ or other individuals’ human rights within that jurisdiction; and
- demonstrate their qualification as a genuine representative of these members or other affected individuals (para 502).
This interpretation of Article 34 ECHR is interesting for several reasons. First, it seems to imply a more-than-the-aggregate-of-individual-interests-approach, which contrasts with the excessive individualism usually characterizing the Court’s approach. It even appears that the “more” part includes the interests of future generations as the Court consistently references their importance in the climate context (paras 489, 499 and521). Specifically, it bases the standing of KlimaSeniorinnen not only on the fact the association represents older women in Switzerland, but that it also ‘represents a vehicle of collective recourse aimed at defending the rights and interests of individuals against the threats of climate change in the respondent State’ (para 523). This could mean that environmental NGOs - in line with the Aarhus Convention (para 491) - can represent the interests of future generations and potentially exact more ambitious and urgent climate action.
While this, at first glance, is a positive development due to the inability or unwillingness of human rights institutions to date to incorporate the interests of future generations, it may have unwanted consequences for the Court. Most notably, as discussed by Judge Eicke in his partly concurring partly dissenting opinion, it might challenge the subsidiary role of the Court by including requirement ‘1’ for standing in the climate context since, as expressed by Judge Eicke, ‘where no such standing for an association is provided for in national law, the Court will, in fact, find itself having to consider these applications as a court of first instance and without the benefit of any prior consideration by the national courts’ (para 50(b) of Judge Eicke’s opinion).
Additionally, the exceptional focus on the NGO makes standing contingent on the existence of a legal entity, as a fictitious creation of the law. This only further removes it from the actual human suffering due to climate change which is, as admitted by the Court, already happening and will only worsen. Through its emphasis on a fictional, disembodied entity, the Court might unknowingly open the door to claims by other legal fictions, such as corporations. Moreover, it can impair access to justice for individuals in those Contracting Parties to the Convention in which the establishment of associations might be more challenging.
It remains unexplained why the Court chose this emphasis on the association and did not accord standing to the individuals under its criterion of ‘highly exceptional circumstances’ concerning future violations (paras 470 and 533). Especially considering that the Court could have taken a vulnerability or intersectional approach to stress that even though everyone is affected by climate change and remedies accorded will benefit the public at large, specific groups will suffer disproportionately and should therefore be afforded standing based on their ‘highly exceptional circumstances’. Doing so would complement the Court’s discussion on Article 6, where the impairment of the right to fair trial was tied to the uncritical domestic denial of the KlimaSeniorinnen case which assumed its actio popularis status and failed to account for the differentiated impact of climate change on the lives of Swiss older women.
With this approach, the Court thus seems to do what it explicitly did not want to: allow public interest litigation by drawing a clear line between the private (with an exceptionally high threshold) and the public (tied to an association) - not recognising the continuum on which these two opposites exist. Perhaps wanting to avoid group claims or bearing in mind future specific victim-based cases such as Müllner v. Austria (to which the Court seems to allude in para 533). Whatever its rationale, the Court has ended up with an approach that holds promise in the climate context but will also likely produce negative consequences and problems with access to justice.
Right to Life
In its environmental case-law, the Court generally conjoins the right to life (Article 2) and the right to respect for private and family life (Article 8), finding that environmental harm is capable of violating both. Unsurprisingly, the KlimaSeniorinnen’s application was founded upon these two provisions. However, instead of the Court’s usual joint approach, its substantive analysis only discussed Article 8. While the right to life was discussed in the evaluation of victim status in light of the applicability of Article 2, it merely repeated the standard formula of ‘real and imminent risk’ (paras 511-513), which it placed in the context of the characteristics of climate change: inevitability, irreversibility, and increasingly frequent and grave. Subsequently, it did not find any need to further examine the applicability of this provision.
Despite this omission, the Court does explicitly link the applicability of Article 8 to that of Article 2 in the climate context. Referencing the principles developed under these provisions in its environmental case law, the Court found that they could provide a basis to inform the ‘overall approach to be applied in the climate-change context under both provisions’ (paras 537-538). As such, it appears that while the applicability threshold for Article 2 is harder to fulfill than that of Article 8, states’ positive obligations under both provisions are virtually the same in the context of climate mitigation and adaptation. Indeed, adopting and effectively applying regulations capable of mitigating climate change reduces the threat that climate change poses to both the right to life, and to respect for private and family life. Perhaps, then, this approach gave the Court the opportunity to circumvent the more stringent procedural aspects of Article 2 while still concluding that Switzerland’s climate measures violate human rights. If so, the Court could, in future climate cases based on Article 2 that do satisfy the procedural requirements, find a violation of the right to life by analogously applying its reasoning from KlimaSeniorinnen and deeming insufficient climate action a violation of the right to life – contrary to the views of the Human Rights Committee in Billy et al. v Australia.
Still, due to the inadmissibility of the Portuguese Youth case, questions remain regarding the threat that climate change poses to other Convention rights, notably the prohibition of torture (Article 3) and of discrimination (Article 14). Future climate litigation could flesh out the potential obligations of states under these provisions and complement the Court’s findings in this round of climate cases.
Concluding Remarks
Overall, the KlimaSeniorinnen judgment gives the impression of fitting a square peg into a round hole - the Court clearly cannot deny that climate change is violating human rights, whilst its jurisprudence and procedural requirements are too narrow and conservative to account for climate change. As a result, its reasoning in relation to standing is sometimes contradictory, which cannot be explained by exclusive reference to the legal context. Its approach on the merits, beyond its approach to the right to life, remains somewhat one-dimensional as it leaves a lot of discretion for Switzerland to implement the necessary reductions. By emphasizing the need for net neutrality, but leaving open many possibilities towards achieving this goal, it fails to take the potentially adverse human rights impacts of climate response measures into account. This can prove problematic in times of market-based mechanisms and carbon capture and storage as it could lead to new rights problems, further limiting a prompt response, and impair climate justice more broadly as it could potentially increase the Global North/Global South disparities. Generally, it appears that the Court has tried to diligently box up the issue of climate change to ensure its reasoning remains limited to climate cases and will largely unburden the Court by its reliance upon the domestic context. Still, it can be questioned if this approach is fit for purpose as there are potential significant consequences both procedurally and substantively in the climate context and beyond.
Bios
Lianne Baars is a PhD Candidate at the Grotius Centre for International Legal Studies, Leiden University. Her research focuses on rights-based climate litigation, specifically procedural requirements at international human rights institutions.
Jolein Holtz is a PhD Candidate at the Grotius Centre for International Legal Studies, Leiden University. Her research also revolves around the intersection of human rights and climate change as she explores the potential of collective human rights in the climate context from a conceptual, substantive and procedural angle.