When the European Court of Human Rights ruled in April this year in the Verein KlimaSeniorinnen Schweiz case that Switzerland had violated the European Convention on Human Rights by failing to adequately address climate change, it was a landmark decision. However, it was not the Strasbourg Court that first addressed the relationship between human rights and climate change. A number of earlier, equally important decisions by other institutions paved the way for this judgment.
At the outset, it is worth saying that the subject of this article is not an analysis of the current ECtHR decision (that is the subject of many others), but a certain recapitulation of relevant developments in other international institutions. A number of earlier decisions could (and will continue to) serve as inspiration, and not only for the Strasbourg Court.
It started nationally
The first courts to address the relationship between human rights and climate change were not international but national courts. The Dutch Urgenda decision is particularly noteworthy in this area. The issue was the extent to which a state is obliged to reduce greenhouse gas emissions and whether a court can order it to do so. After the Dutch Government scaled back its earlier plans to reduce emissions, the Urgenda Foundation sued and won. The court ordered the state to reduce emissions by at least 25% by the end of 2020. The decision was upheld by the Dutch Supreme Court in 2019, which also argued the state's positive obligations in relation to the right to life (Article 2) and the right to respect for private and family life (Article 8) under the European Convention on Human Rights.
Subsequently, the Federal Constitutional Court of Germany ruled similarly in 2021 in the Neubauer case. The law at the time set out a plan for reducing emissions by 2030, but did not sufficiently specify the need for further reductions from 2031 onwards. With respect to the targets under the Paris Agreement, the court ruled that emissions would also need to be reduced faster in the first period in order to reach the 2050 carbon neutrality target. In doing so, it emphasised intergenerational equity, which states that delaying the need to reduce emissions would be unfair to subsequent generations.
Since then, there have been a number of national decisions on climate change and human rights in different countries, with, of course, different results. In the Czech Republic, the Municipal Court in Prague found in the climate action case that the State's failure to act constituted an unlawful interference with the complainants' rights. However, the decision was overturned and remanded by the Supreme Administrative Court, which took both the collective nature of the EU obligation and the restraint of the judiciary into account.
Various developments at international level
Developments regarding climate change have also been reflected in the UN Human Rights Council. The Geneva-based body established a Special Rapporteur on climate change in 2021, in addition to the existing Special Rapporteur on the human right to a healthy environment. In the same year, the right to a healthy environment was affirmed as a human right by the Council. The following year, the existence of the human right to a healthy environment was also recognised by a UN General Assembly resolution.
An interesting encounter with the above topic can also be observed in the Human Rights Committee, which is also based in Geneva. This decision-making (quasi-judicial) body, which monitors compliance with the International Covenant on Civil and Political Rights, ruled in the case of Teitiota v. New Zealand on the issue of climate refugees. While no violation was found in that case, the Committee explained that as the effects of climate change increase, this may happen in the future.
In 2022, the Human Rights Committee ruled on the case of Daniel Billy and others v. Australia on the violation of the rights of indigenous peoples in the low-lying Torres Strait archipelago in relation to the effects of climate change. While the Committee did not find a violation of the right to life (Article 6 of the Covenant), it did find violations of the right to private and family life (Article 17) and the cultural rights of minorities (Article 27).
The Committee on the Rights of the Child, which monitors compliance with the Convention on the Rights of the Child, in turn ruled on a communication brought against several countries in the Sacchi case, where the issue was the responsibility of States for the production of emissions. While the Committee rejected the complaint due to failure to exhaust domestic remedies, it recognized the extraterritorial responsibility of States for the harmful effects of greenhouse gas emissions. Moreover, the Committee on the Rights of the Child's new general comment No. 26 specifically addresses climate change and refers to the right to a healthy environment as a human right.
Moreover, developments at the international (global) level are also at judicial institutions. In 2022, the Hamburg-based International Tribunal for the Law of the Sea received a request for an advisory opinion on the obligations of the parties to the UN Convention on the Law of the Sea in relation to the protection of the marine environment and climate change. The opinion was recently published by the court. Then, in 2023, the UN General Assembly requested an advisory opinion from the International Court of Justice in The Hague on the obligations of States in relation to climate change. Further significant specification of States' legal obligations in this area can therefore be expected in the near future.
The regional level is not lagging behind
Although the European Convention on Human Rights does not include a right to a healthy environment, that is not the case in later regional systems. The African Charter on Human and Peoples' Rights includes it in its Article 24. While the American Convention on Human Rights, like the European system, does not explicitly include it, the later San Salvador Protocol on Economic, Social and Cultural Rights does. Initially, violations of the right to a healthy environment could not be brought as individual complaints to the court. However, in 2018, the Inter-American Court of Human Rights issued Advisory Opinion 23/17, extending the scope of the American Convention to include the right to a healthy environment.
Then, in 2023, Chile and Colombia submitted a joint request for an advisory opinion to the Inter-American Court of Human Rights to clarify the scope of state obligations to respond to climate emergencies under international human rights law. The Court is currently intensively examining this issue.
The relationship between climate change impacts and human rights is becoming increasingly clear. A number of complaints argue for impacts such as heat waves, forest fires, air pollution, mental health impacts, sea level rise and extreme rainfall and flooding. Impacts on particular vulnerable groups such as the elderly, indigenous peoples or children can also be distinguished.
In addition, a number of relevant rules applicable for environmental protection purposes, including climate, are part of customary international law. In this context, mention can be made of the precautionary principle (prevention of serious environmental damage), the environmental impact assessment or the precautionary principle.
The current ECtHR judgment and further developments
The case of Verein KlimaSeniorinnen Schweiz v. Switzerland was the first climate case to be brought before the Strasbourg Court after domestic remedies had been duly exhausted. Since then, a number of complaints on similar issues have been registered with the Court. The European Court of Human Rights has ruled on three cases, of which only in this one was a violation of the Convention found, namely the right to respect for private and family life (Article 8) and the right of access to the court (Article 6(1)). It is thus judicially confirmed that insufficient state action in the field of emission reduction can violate human rights.
Does this resolve the relationship between climate change and human rights? On the contrary, the interpretation of this relationship is in its infancy. Indeed, the impacts of those changes could cause interference with other human rights.
International courts often like to take inspiration from each other's arguments. Thus, in light of the above overview, a number of interesting decisions can be expected in the area of climate change and human rights, both at the universal and regional level, including at the European Court of Human Rights.
References
The Urgenda decision (in English): https://www.urgenda.nl/wp-content/uploads/ENG-Dutch-Supreme-Court-Urgenda-v-Netherlands-20-12-2019.pdf
The Neubauer decision (in English): https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2021/bvg21-031.html
The decision of the Supreme Administrative Court of the Czech Republic on climate action can be found on the court's website under 9 As 116/2022, press release here (in Czech): https://www.nssoud.cz/aktualne/tiskove-zpravy/detail/nejvyssi-spravni-soud-zcasti-zrusil-rozsudek-mestskeho-soudu-v-praze-ve-veci-klimaticke-zaloby
UN General Assembly Resolution A/RES/76/300 on the right to a healthy environment: https://documents.un.org/doc/undoc/gen/n22/442/77/pdf/n2244277.pdf?token=gOVuHjTv9Diqw5utyL&fe=true
Decision of the Human Rights Committee in the case of Ioane Teitiota v. New Zealand: CCPR/C/127/D/2728/2016, 24 October 2019 (in particular para. 9.11)
Decision of the Human Rights Committee in Daniel Billy and others v. Australia: CCPR/C/135/D/3624/2019 of 18 September 2023
Decision of the Committee on the Rights of the Child in the case of Chiara Sacchi et al: CRC/C/88/D/104/2019, 22.9.2021
General Comment No. 26 (2023) of the Committee on the Rights of the Child on children’s rights and the environment with a special focus on climate change: https://www.ohchr.org/en/documents/general-comments-and-recommendations/crccgc26-general-comment-no-26-2023-childrens-rights
Request for an advisory opinion to the International Tribunal for the Law of the Sea: https://www.itlos.org/en/main/cases/advisory-proceedings/ (case no. 31)
Request for an advisory opinion to the International Court of Justice: https://www.icj-cij.org/case/187
Inter-American Court of Human Rights Advisory Opinion OC-23/17 of 15 November 2017: https://www.corteidh.or.cr/docs/opiniones/seriea_23_ing.pdf
Request for an advisory opinion from the Inter-American Court of Human Rights filed on 9 January 2023: https://www.corteidh.or.cr/docs/opiniones/soc_1_2023_en.pdf
First decision in climate cases at the European Court of Human Rights: https://www.echr.coe.int/w/grand-chamber-rulings-in-the-climate-change-cases
Jan Lhotský. The (Missing) Right to a Healthy Environment in International Human Rights Law, especially the European Convention on Human Rights. In Pavel Šturma (ed.). Czech Yearbook of Public & Private International Law – Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 12. Praha: Česká společnost pro mezinárodní právo, 2021, s. 246-255: https://rozkotova.cld.bz/CYIL-vol-12-2021/246/
Photograph
Švýcarsko porušilo Evropskou úmluvu o lidských právech. The Swiss flag, autor: Marvin Wiki13, 29. červenec 2018, zdroj: Wikimedia Commons, CC BY-SA 4.0.
