Climate Change And Breaches Of The Right To Respect For Private And Family Life
In the case of Veren KilmaSeniorinnen Schweiz and Others v Switzerland the European Court of Human Rights found that there had been a violation of Article 8 (the right to respect for private and family life) due to the failure of the Swiss authorities to take sufficient action to mitigate the effects of climate change. This is a significant development in the scope of Article 8 and its application to the damaging impact of the effects of climate change. It has opened the door to potential further domestic cases challenging the failure of government bodies to take action to tackle climate change.
In light of the continued lack of urgency demonstrated by the UK government to implement measures to tackle rising temperatures, there is a role for legal challenges to ensure greater accountability and protection of fundamental freedoms. Helpfully, the Court emphasised the critical role of the domestic courts in climate change litigation and the importance of access to justice in the field of climate change. It found that failure of the Swiss court to accept the applicant association’s legal action and by failing to examine the merits of the complaints, amounted to a breach of the association’s Article 6 (1) rights (the right to a fair and public hearing). Importantly, the Swiss courts had failed to consider the compelling scientific evidence.
The Court found that Article 8 of the Convention encompasses a right to effective protection by State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life. States have a duty to adopt and apply regulations and measures which are capable of mitigating the effects of climate change. The obligation flows from the causal relationship between climate change and the enjoyment of Convention rights and the requirement for the Convention to be interpreted to ensure the practical and effective protection of individuals’ rights. In particular, States must implement measures to reduce greenhouse gas concentrations and to prevent the rise in global temperature.
The Court found that, as a matter of fact, climate change, caused by human activity, exists and poses a serious threat to the enjoyment of human rights. States are able to take steps to address this through urgent action to limit the rise in temperatures to 1.5 degrees Celsius above pre-industrial levels. The Court further noted that future generations are likely to bear the burden of present failures.
The failures of the Swiss Confederation included:
- gaps in the process of putting in place the relevant domestic regulatory framework, including a failure to quantify, through a carbon budget or otherwise, national greenhouse gas emissions limitations;
- a failure to meet the greenhouse gas emission reduction targets.
The Court noted that the national authorities enjoy a margin of appreciation (or discretion) as to how to implement relevant measures, but that the evidence before the Court demonstrated that the Swiss authorities had not acted in a timely and appropriate way to develop and implement legislation and measures to address the effects of climate change.
The Court held that the individual Swiss women who had brought the claims did not meet the required threshold to demonstrate that they had ‘victim status’. They could not show that they were personally and directly affected by government action or inaction. The Court held, however, that the organisation which had also submitted a claim to the Court did meet the victim status test. This was because climate change is an issue of common concern for humankind and there is a need to promote intergenerational burden-sharing.
It was also recognised that legal actions by associations may be the only practical way in which climate change cases can be brought. In addition the Swiss organisation met the necessary criteria set out in the judgment. These included:
- being lawfully established;
- having as its purpose the defence of human rights of its members or other affected individuals;
- being genuinely qualified and representative to act on behalf of members or affected individuals subject to specific threats posed by climate change on the lives, health or well-being.
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