The European Court of Human Rights ‘ECHR’ delivered a landmark ruling on 9 April 2024 in a climate case brought by 2,000 Swiss women, mostly in their 70s
Verein KlimaSeniorinnen Schweiz and Others v Switzerland https://en.klimaseniorinnen.ch
The women had argued that Swiss climate policies, or the lack of them, violated their rights to private and family life and health under the European Convention on Human Rights, and that the Swiss Supreme Court’s rejection of their case violated their right to a free trial. Essentially they contested Switzerland’s failure to adopt adequate climate policies – the absence of a carbon budget, past failures to meet greenhouse gas emission reduction targets, inadequate policies to achieve emission reductions. They argued that this contributed to climate induced heatwaves, which in turn put them at risk of damage to health and dying.
The European Court of Human Rights HELD that Article 8 ECHR 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”. It also found a breach of Article 6, the right to a free trial.
While States had a wide ‘margin of appreciation’ to apply effective climate change policies in their own contexts and with their own approaches, this did not entitle them to take no effective action. In the part of the judgement relating to Article 8 ECHR the Court stated –
“573. In conclusion, there were some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations. Furthermore, the Court has noted that, as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets (see paragraphs 558 to 559 above). By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context.
574. The above findings suffice for the Court to find that there has been a violation of Article 8 of the Convention. “
The Court also stated –
“(ii) Content of the States’ positive obligations
“544. As stated above, the Court already held long ago that the scope of protection under Article 8 of the Convention extends to adverse effects on human health, well-being and quality of life arising from various sources of environmental harm and risk of harm. Similarly, the Court derives from Article 8 a right for individuals to enjoy effective protection by the State authorities from serious adverse effects on their life, health, well-being and quality of life arising from the harmful effects and risks caused by climate change (see paragraph 519 above).
545. Accordingly, the State’s obligation under Article 8 is to do its part to ensure such protection. In this context, the State’s primary duty is to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change… “
The case is directly applicable to other countries which are signatories of the European Convention of Human Rights. However there is no doubt that landmarks in climate litigation are having a wider impact around the world, as other courts take note of the way in which arguments are framed when facing similar arguments locally, so the wider influence of this first ECHR climate judgement will probably be global.
In the same session, the European Court of Human Rights ruled AGAINST the admissibility of two further claims -
Careme v France https://climatecasechart.com/non-us-case/careme-v-france/
– a human rights climate challenge by a French mayor was ruled inadmissible on the grounds that he had moved and no longer lived in the place about which his claim was based; and
Duarte, Agostinho & Ors v Portugal https://climatecasechart.com/non-us-case/youth-for-climate-justice-v-austria-et-al/
- a human rights challenge brought by 6 young Portuguese plaintiffs, on similar grounds to the Klima Seniorrinnen against the inadequacy of climate policies in 32 European countries. This was ruled inadmissible on the grounds that the plaintiffs had not exhausted all legal avenues in their national courts, and the Court ruled against the extension of their claim to countries other than Portugal.
INDIAN SUPREME COURT CASE ON CLIMATE, BIODIVERSITY, ENERGY TRANSITION AND CONSTITUTIONAL RIGHTS
On 21 March 2024 the Chief Justice of India, Dr Dhanajaya Y Chandrachud and India’s Supreme Court handed down a truly historic judgement in a climate case, M.K. Ranjitsinh & Others v Union of India (2024 INSC 280). The case will also be reported on our climate website The Borrowed Earth Project www.borrowedearthproject.com
The Supreme Court considered –
the duties to protect critically endangered species, and biodiversity – in this case the critically endangered Great Indian Bustard and its smaller cousin the Lesser Florican ;
the urgent demands of the energy transition, and India’s international commitments to move to renewable energy; and
the rights enjoyed by citizens of India, under the Indian Constitution and more widely.
The Supreme Court held that the protection of the critically endangered biodiversity and the energy transition and moves to renewable energy were both essential. It was not a binary choice between them and the government and relevant stakeholders had to balance their demands and apply both principles. It mandated the establishment of a Committee to address this.
The Supreme Court also ruled that Article 21 of the Indian Constitution, the right to life, was to be read as extended to include “protection against the adverse effects of climate change”.
The Great Indian Bustard and the Lesser Florican are on the verge of extinction , and one of the (many) factors contributing to their decline are said to be collisions with overhead power lines.
In 2021 this resulted in a Court order requiring the cessation of construction of new overhead power lines, and the burial underground of existing lines, across an area covering 99,000 square kilometres.
This caused consternation, as the areas affected, the northern deserts of Rajasthan, Gujerat and Maharashtra, are also the focus of massive efforts to develop renewable energy projects. The Indian government applied for the modification of an order which it argued was unworkable and impossibly expensive and which it said would prevent it from meeting national and international commitments to the energy transition and the achievement of net zero.
The Supreme Court reviewed the evidence of the last ditch efforts for conservation of the endangered species, and the countervailing evidence related to climate change, India’s commitment to the energy transition. And its plans for renewable energy. While it accepted the need to modify the effect of the 2021 order, the Supreme Court insisted that state and wildlife bodies work together, on a Committee which it constituted, to try to reconcile biodiversity protection with renewable energy developments. And, as noted, the Court went on to declare in terms that the Indian Constitution’s “right to life’ had to be read as including “protection against the adverse effects of climate change.”
It will be seen that while the Indian Supreme Court started from different facts and underlying legislation to the European Court of Human Rights in the KlimaSenioirinnen case, it arrived at similar overall conclusions. It is particularly interesting to see a Supreme Court in India paying close attention to other international jurisprudence and climate litigation, as well as human rights cases concerning climate change, which underlines the growing international impact of climate litigation.