Three important decisions of the European Court of Human Rights on climate change

On April 9, 2024, the Grand Chamber of the European Court of Human Rights (“ECtHR”) ruled on three important climate cases brought before the Court in 2023:

▪️ Duarte Agostinho and Others v. Portugal and 32 Other States;

▪️ Verein KlimaSeniorinnen Scheiwz and Others v. Switzerland;

▪️ Carême v. France;

It is important to note that, although the European Convention on Human Rights (“ECHR”) does not include a right to a healthy environment as such, the court has been called upon to develop its environmental case law, since some Convention rights, namely the right to life, can be affected by the existence of environmental damage and/or exposure to environmental risks.

The Duarte Agostinho case was brought by a group of Portuguese citizens (aged between 10 and 23) and concerned the greenhouse gas emissions of 32 Member States, which the applicants claim contribute to the phenomenon of global warming, alleging that it directly affects the applicants’ living conditions and health. According to the applicants, the targeted states are not fulfilling their positive obligations under Articles 2 (i.e., right to life) and 8. In addition, they also alleged a violation of Article 14 (i.e., prohibition of discrimination), arguing that global warming affects younger generations in particular and, as such, the interference with their rights is greater than with older generations.

However, the ECtHR concluded that the request was inadmissible because:

i. The Court found no basis for extraterritorial jurisdiction in the Convention;

ii. The applicants had not exhausted all legal remedies available to them in Portugal.

Under Article 35(3) and (4) of the ECHR, which regulate the admissibility criteria for applications, the court decided that the Portuguese citizens’ application was not compatible with its requirements.

The French case, brought by a resident and former mayor of France, who accused the French state of failing to take sufficient measures to prevent climate change and that this failure constituted a violation of the right to life and the right to respect for private and family life, was also declared inadmissible. The ECtHR concluded that since the applicant had no relevant links with the municipality and, moreover, was not currently resident in France, he could not be granted victim status under Article 3 of the ECHR.

Finally, the ECtHR ruled on a third case, brought by four women and a Swiss association (Verein KlimaSeniorinnen Schweiz), alleging that:

▪️ The Swiss authorities failed to comply with their positive obligations under the ECHR to mitigate the effects of climate change;

▪️ Not having access to a court of law and the absence of any judicial redress mechanism for lodging their complaints.

In this case and unlike the previous two, the ECtHR concluded that both Article 8 and Article 6(1) (i.e., the right to a fair trial/access to courts) of the ECHR had been violated, stating that Article 8 includes the right to effective protection by state authorities against the serious adverse effects of climate change on life, health, well-being and quality of life.

These rulings are of significant importance, as they confirm that the ECtHR will continue to develop its case law on the environment/climate action, even if there is no right expressly provided for in the ECHR. Furthermore, and taking into account the Court’s conclusions in the Swiss case, this is the first time that the ECtHR has found a state guilty of failing to adopt sufficient measures to combat climate change. It is therefore to be expected not only that climate litigation will increase, but also that the decisions handed down in these cases will be favorable, thereby increasing pressure on states to adopt measures to combat climate change/protect the environment.