ECHR took a risk in ruling that a country broke the law
LAST week the European Court of Human Rights gave one of the most extraordinary judgments it has ever handed down. It ruled that Switzerland had acted unlawfully in failing to take adequate steps to combat climate change and that this failure was a breach of human rights.
The implications of this ruling reach far and wide, including here in Scotland. The United Kingdom is still bound by the European Convention on Human Rights (ECHR). Brexit withdrew the UK from the European Union but the ECHR is not part of EU law and, even after Brexit, the UK is still subject to the rulings of the European Court of Human Rights.
Thus: what the court ruled last week for Switzerland applies equally here, as it applies to all 46 countries, from Ireland to Turkey and from Finland to Malta, who are bound by the European Convention.
Climate change is one of the gravest and most urgent threats to humanity. Of this there can be no doubt. Mankind is causing the planet to warm and, unless we change our behaviour to stop this from happening, the consequences for human life and for so much else will be catastrophic.
Climate change may have brought seemingly endless rain to Scotland but, in central and southern Europe, it has brought an unprecedented series of dangerous summer heatwaves. There have been droughts in France and Spain, wildfires in Italy and Greece.
The case against Switzerland was brought by a group of about 2,000 elderly Swiss women whose quality of summer life has been adversely affected by heatwaves. Between May and September, many of these women have been unable to go outside during the day, several of them suffering from breathing difficulties. The thermometer has determined the way they lead their lives, as the court’s judgment put it.
There is no doubt the problem is serious. Older people are dying in the European heat, rates of heat-associated mortality having climbed by an astonishing 68% in recent years. This is a clear and direct threat to life.
The women took action in the Swiss courts, seeking a ruling that the Swiss authorities had done too little to implement into domestic law international legal obligations to reduce greenhouse-gas emissions, increases in which have done so much to contribute to global warming. These obligations were established first in the Kyoto Protocol in 1997 and were then revised and formalised in 2015 by the Paris Agreement, a binding treaty in international law.
Part of the problem in Switzerland was that the authorities had in fact legislated to implement their international obligations into domestic legislation. But that legislation was then rejected by democratic vote in a popular referendum. This is a real struggle for law-makers everywhere: the scientists are telling us we need to make changes to our behaviour that we just do not want to make.
The women did not get the remedy they sought in the Swiss courts, so they took their case to Strasbourg, to the European Court of Human Rights. This court has only one job: to enforce the European Convention on Human Rights. And the problem for the Swiss women is that the ECHR contains no right to a sustainable environment. So the women tried to shoehorn such a right into the right to life (which the convention certainly protects) and into the right to privacy (which the convention also protects).
Such a case has been building for years. Environmental campaigners have been turning more and more to the courts in Europe to put pressure on governments to go further and act faster to address global warming. In France the courts have fined the administration for not doing enough. In Germany the courts have thrown out aspects of domestic law for being too vague. In the Netherlands the courts have gone further, ruling that political failure to combat climate change was in breach of fundamental rights.
But not all European courts have been so bold and key judicial decisions in Britain and Ireland, as well as elsewhere, have held back from such rulings, with judges insisting that climate change is a pressing matter of public policy (for governments and parliaments) not a matter of human rights law (for courts).
Because of its high profile, the Strasbourg court assembled what it calls a Grand Chamber of 17 judges to hear the case. They ruled by 16 votes to one that the women’s rights had been infringed. Switzerland has not been fined (it has been required merely to pay the women’s legal costs) but the whole of Europe, Britain included, has been put on notice that governments which fail to tackle climate change sufficiently seriously may be acting in breach of human rights.
This is a step change in the law. Neither Kyoto nor the Paris Agreement included any provision enabling a court to enforce the obligations to cut greenhouse-gas emissions which states signed up to. States would never have made such commitments otherwise.
Despite the seemingly emphatic 16:1 vote, the court’s ruling is a massive risk for it to have taken. Some will commend it for its bold action; others will condemn it for its unwarranted judicial activism.
It is a risk to have invented legal duties in European human rights law where none previously existed. It is a risk to have implied a new right (to a sustainable environment) into the ECHR where no such right is expressed. It is a risk to have ruled that the Swiss women were
“victims” of an abuse of rights when, until now, the Strasbourg system has not allowed such public interest litigation.
Several European states intervened in the case, including Austria, Ireland, Italy, Norway and Portugal. Every single one of them argued that the court should not rule as it did. It is a huge risk for the court to have ignored all these governments and re-crafted European human rights law in such a novel direction.
The judges know full well the risks they have taken. They chose to take them because of the urgency of the climate crisis. Time will tell whether they were right to do so, but no-one should be under any doubt about how radically the ground has shifted.
The implications of this ruling reach far and wide, including here in Scotland