‘Governments need to address the climate crisis, not the courts’

The European Court of Human Rights (pictured) has condemned Switzerland for its climate inaction, stating that it is up to the government to develop appropriate measures to protect the population from the negative impacts of climate change. KEYSTONE/© KEYSTONE / CHRISTIAN BEUTLER

Legislators across Europe should pay close attention to the landmark ruling of the European Court of Human Rights against Switzerland, says an expert on international climate cases. The decision against Switzerland may not be the only one creating a sensation.

Switzerland is not doing enough to protect its citizens from the negative impacts of climate change. This was ruled by the European Court of Human Rights (ECHR)External link in Strasbourg. In early April, the court reprimanded the federal government for violating the fundamental rights of a group of elderly women, who are particularly vulnerable to heatwaves.

It was the first time the ECHR’S ruled on a climate lawsuit, with ramifications for all 46 countries of the Council of Europe and potentially worldwide. The importance of this case cannot be overstated, Tiffanie ChanExternal link, a policy analyst at the Grantham Research Institute on Climate Change and the Environment, tells SWI swissinfo.ch. The London-based institute publishes an annual reportExternal link on the state of climate litigation around the world.

SWI swissinfo.ch: What does the ruling mean for ongoing and future climate lawsuits in Europe?

Tiffanie Chan: The ECHR decision is important for multiple reasons. One crucial aspect is the potential implications for lawmakers. There is now clear confirmation that ECHR states bear a positive obligation to establish a binding regulatory framework at the national level to protect citizens from climate change. National legislative bodies across Europe should pay close attention to the judgment.

In its ruling, the Court, in practical terms, states that in order to fulfill its obligation under the European Convention on Human Rights, a state must put in place a sufficient regulatory framework, in line with the Paris Agreement and climate science, moving towards “net neutrality” in the next three decades. This framework must contain interim emission reduction targets and show how the country intends to achieve them (e.g., through defining a carbon budget).

There are nearly 30 countries in Europe that have relevant laws or are in the process of drafting them. These states will need to make sure that their laws meet the minimum standards set by the Court. If not, they could be subject to litigation.

SWI: Seven other climate cases are currently pending at the ECHRExternal link. Which case should we keep an eye on that could shake things up?

T.C.: To highlight just one case, there is the case brought by Greenpeace against Norway. It concerns oil and gas exploration in the Arctic. According to the environmental organization, the Norwegian government’s issuance of new oil and gas exploration licenses violates Articles 2 and 8 of the European Convention on Human Rights.

Depending on the outcome, it will provide guidance on the ability of developed countries to continue to explore new oil and gas fields, in the context of their commitments under the Paris Agreement.

SWI: Are there any recent cases that have been dismissed or that got a negative verdict that could be retried under the new ruling against Switzerland?

T.C.: It will depend on the court procedure rules for the specific case. For cases whose verdict represents a final judgment, meaning it was issued by the apex court or so-called highest court, an appeal may not be possible.

However, the ECHR ruling against Switzerland offers opportunities for ongoing and new cases. The Strasbourg court was very clear in stating that the Swiss national courts did not properly address the Swiss Climate Seniors Association’s arguments. They did not provide convincing reasons to support their decisions and did not properly consider the scientific evidence of climate change.

This is important because there are other cases going on in Europe. For example, in March the Civil Court in Rome declared inadmissible a climate case brought against the Italian state, accused of failing to take actions necessary to meet the Paris Agreement targets and violating fundamental human rights. The court said it lacks jurisdiction to look at the case.

I do not know what will happen next in this case, but the ECHR judgment means that national courts must properly engage with the core issues and Courts might be more willing to interpret the European Convention on Human Rights in light of the verdict it provided in the Swiss case.

Tiffanie Chan is a policy analyst at the Grantham Research Institute on Climate Change and the Environment, based in London. Grantham Research Institute on Climate Change and the Environment

SWI: The ruling of the Court has triggered a lot of criticism. The Swiss People’s Party, the largest party at national level in Switzerland, said that courts should focus on justice, not politics. Can the ruling really be seen as an intervention into politics?

T.C.: No. If you look at the ruling, it is clear that the Court is deferential to this idea of separation of powers between the executive, legislature and judiciary. It is the state which has signed up to the Paris Agreement. The Court merely defines the minimum standards that should be contained in the regulatory framework, so that there is no violation of the human rights of the citizens. It is Switzerland, and more in general the Governments, who needs to come up with measures and address the climate crisis, not the courts. 

SWI: Let’s say I feel unsatisfied with the climate action of my country. Which learning from the ECHR’s ruling on the Swiss case should I consider before filing a lawsuit?

T.C.: The first thing is that you need to have exhausted all domestic remedies. This is very clear from the climate appeal of six young Portuguese [Duarte Agostinho and others v. Portugal and 32 other statesExternal link, ed.], which the ECHR dismissed on the same day it ruled against Switzerland. One must first go through the national courts because the state should have the opportunity to resolve it before it goes to the European Court.

The second lesson is that NGOs and people gathered in an association, and not individuals, are more likely to be successful and meet the requirements to bring these cases. In the ECHR judgment on the Swiss case, the Swiss Climate Seniors Association was granted standing, but the individual applicants were not. There is a high bar for individuals to demonstrate that they were personally and directly affected.

SWI: This year, three international courts – the International Court of Justice, the International Tribunal of the Law of the Sea, and the Inter-American Court of Human Rights – will issue advisory opinions on the State’s obligations in the context of the climate crisis. What can we expect? 

T.C.: The three international courts and the European Court don’t necessarily have the same rules in terms of procedure or interpretation.

However, one point I think we should look out for is the issue of what states must do to protect people outside their borders. Although the European Court acknowledged in the Agostinho case that greenhouse gas activities in one state’s territory may affect the well-being of people residing outside their borders, The Court ruled that it was not possible to determine that the Convention imposed “extraterritorial obligations” on states to protect people living elsewhere in the world from climate change.

This concept is not aligned with a previous opinion from the UN Committee on the Rights of the Child and the Inter-American Court of Human Rights.

This year, the three international courts will likely have a chance to shed further light on the issue of extraterritoriality. It will be interesting to see if they will each have different interpretations. I think the recent ruling is unlikely to be the last word on the question on what states must do to protect people beyond their borders.

Edited by Sabrina Weiss