What next after the ECHR decision on climate change?

4 min read

With its latest decision, the European Court of Human Rights (ECHR) ruled that government inaction on climate change violated fundamental human rights.

The aim is noble, but the price might be too high, as the court created a new challenge to elected governments in an already tense period, right in the middle of the campaign for the European Parliament elections, in the very same time when a few of the EU’s green initiatives fueled farmers’ protests across Europe.

The ECHR ruled that Switzerland had violated the rights of a group of older Swiss women to family life. The women, part of the KlimaSeniorinnen (Swiss Elders for Climate Protection) group, argued that because older women are more likely to die in heatwaves – which have become hotter and more common because of fossil fuels – Switzerland should do its share to stop the planet’s heating by the Paris agreement target of 1.5C (2.7F) above preindustrial levels.

The court found that Switzerland had failed to comply with its duties to stop climate change. The ECHR answered with a clear ‘yes’ to the question of whether government inaction on climate change violated fundamental human rights. The court ruled that Switzerland failed to act in time and in an appropriate way to protect people from climate change impacts.

The decision could also force Bern to reduce fossil fuel consumption more rapidly. If Switzerland fails to update its policies, further litigation could lead to additional financial penalties.

The judgment leaves no doubt that the climate crisis is a human rights crisis. This ruling is expected to influence climate action and climate litigation across Europe and far beyond. “It’s the first authoritative judgement we have from a supranational court that directly links human rights violations to insufficient or non-ambitious action on climate change,” Christina Voigt, a professor of law at the University of Oslo said.

This ruling is indeed historic and could have far-reaching implications for climate action and human rights litigation worldwide. It underscores the urgency of addressing climate change and holds governments accountable for their actions—or lack thereof—in this critical area.

The verdict exposes all 46 members of the Council of Europe to similar cases in national courts. Cases that they are likely to lose. No wonder that it’s seen as a significant victory for climate activists and is expected to influence climate action and climate litigation across Europe and beyond.

Several environmental activist and legal experts declared that this legal precedent reinforced the need for governments across Europe to prioritize emissions policies and take meaningful action towards reducing greenhouse gas pollution.

Mandi Mudarikwa, Amnesty International’s Head of Strategic Litigation also praised the ruling, stating that it sets a vital and historic precedent. She also noted that the ECHR’s ruling “sends a powerful message to policymakers in European countries that states must intensify their efforts to combat climate change”.

The low-profile reaction from Bern only said, that “Together with the authorities concerned, we will now analyze the extensive judgment and review what measures Switzerland will take in the future”. The European Commission didn’t seem completely happy, either, as its press office only said, “The Commission takes note of these rulings and will of course be studying them very carefully. But regardless of the legal arguments, what these cases do is they remind us of the high importance and urgency which our citizens attach to climate action.”

Most European governments remained silent.

Probably still in shock that from now on, the ECHR will be allowed to judge their policies related the environmental actions, which means all the investment projects, industrial developments or financial policies could be investigated through a rather shaky, new, human rights microscope. (A “microscope” not specifically mentioned in the European Convention of Human Rights.)

Backlash from the Conservative Party (U.K.) was much louder.

Energy Secretary Claire Coutinho had already expressed concern that judges in Strasbourg were taking over decisions best made by elected politicians. Other Tory MPs have declared the latest “bonkers” ruling by the European Court of Human Rights proved that it was time to quit as it was becoming “too political”. Former Home Secretary Suella Braverman said Britain must ensure it cannot be dictated to “by a foreign court in Strasbourg”.

Concern over the court’s ‘mission creep’ intensified after it ruled Switzerland’s attempts to cut carbon emissions had been woefully inadequate.

Tory MPs warned that “Strasbourg … is setting itself up as a legislator in place of elected Governments” and warned that their “expansionist doctrine” was “profoundly undemocratic”. ()

The decision quickly heated up the debate in London whether the U.K. should leave the ECHR because of its overly political decisions, one that was already boiling after the ECHR prevented the so called “Rwanda flights”.

In this debate conservative MP Danny Kruger added: “The Strasbourg Court is setting itself up as a legislator in place of elected governments. The ECHR has been bent out of shape by activists and politicians who want to seem progressive and internationalist by junking both nations and democracy. We should leave.” Continuing the “trend”, Tory grandee Sir John Hayes added, “Not now by the interfering bureaucrats of the EU, but by the unelected, unaccountable judges in the European Court of Human Rights.”

The ECHR member states’ governments are in a difficult situation.

Six other climate cases are currently on hold at the court pending this decision, including a lawsuit against Norway that alleges that Oslo violated its citizens’ human rights by issuing licenses for oil and gas exploration in the Barents Sea post-2035.

The debates about ECHR’s activity and the question whether it may have exceed the court’s mandate and encroached upon national sovereignty is not a new phenomenon.

According to Steven Wheatley’s article (2023) in the Human Rights Law Review, the main issue used to be that “what do we mean when we speak about ‘human rights’?” and “can the demands of human rights really change over time?”. For the second question, now, we got ECHR’s own, clear vision.

It was investigated (among many others) by Sonja C. Grover in her work titled “Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of Human Rights”.

According to her view the ECHR’s “living instrument” methodology is controversial because the changing implementation of the human rights according to “present day standards” can create unpredictability. National legal systems rely on predictability, and when the ECtHR shifts its interpretation, it creates uncertainty for states and individuals.

She highlights that the unelected judges shouldn’t have the authority to redefine human rights norm. And it raises concerns about democratic legitimacy, if the ECHR’s decisions can overwrite democratic processes and national preferences. Some states also believe that the “Living Instrument” doctrine may lead to outcomes inconsistent with their cultural, social, or political values.

The latest “landmark ruling” screams “judicial activism”.

If a “newish” category of human rights (not defined in any international treaty, nor being based on a universally accepted theory) can lead to elected governments’ policies and political decision getting overwritten, it’s controversial, at best. Especially in a time when Europe is stuck in the middle of the US-China economic rivalry, the threat of a war with Russia is on the horizon.

The timing must have been coincidental, too. Right in the middle of the run-up for European Parliamentary elections, where green issues are one of the most debated campaign topics. For the last few weeks, left-leaning media was loudly screaming about the “green setback” due to farmers’ protests and changing priorities (e.g. more focus on defence expenditures). A ruling like this is a “life belt” for the greens, a new flag to carry around as a rallying point.

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