Category: Blog

By Ayyoub (Hazhar) Jamali, postdoctoral researcher at the University of Zurich

Summary:

On 12 December 2022, the Co-Chairs of the Commission of Small Island States on Climate Change and International Law formally requested an advisory opinion from the International Tribunal for the Law of the Sea (ITLOS). This request sought to clarify the obligations of State Parties under the United Nations Convention on the Law of the Sea (UNCLOS) in relation to addressing the effects of climate change on the marine environment. The request underscored the significant challenges that small island states face due to climate change, particularly concerning ocean warming, sea level rise, and ocean acidification caused by anthropogenic greenhouse gas (GHG) emissions.

The Commission posed two key questions to ITLOS:

1. What are the specific obligations of State Parties under UNCLOS, particularly Part XII, to prevent, reduce, and control pollution of the marine environment caused by climate change? This includes addressing ocean warming, sea level rise, and ocean acidification resulting from human-generated GHG emissions.
2. What responsibilities do State Parties have under UNCLOS to protect and preserve the marine environment from the impacts of climate change?

The Advisory Opinion:

Question 1: Obligations to Prevent, Reduce, and Control Pollution

The Tribunal first addressed whether anthropogenic GHG emissions qualify as ‘pollution of the marine environment’ under Article 1, paragraph 1, subparagraph 4, of UNCLOS. In doing so, it analysed the three cumulative criteria outlined in the Convention’s definition. The Convention defines pollution as the human introduction of substances or energy into the marine environment that results or is likely to result in harmful effects. The Tribunal finds that GHGs, as gases, meet the first criterion of being substances. Furthermore, it concludes that anthropogenic GHG emissions are produced by humans and can directly or indirectly introduce substances and energy, such as heat, into the marine environment, satisfying the second criterion. The third criterion is that the introduction of these substances or energy must result or be likely to result in deleterious effects. The Tribunal finds that anthropogenic GHG emissions lead to ocean acidification and global warming, which harm marine life and ecosystems, thus satisfying the third criterion. Therefore, the Tribunal recognises anthropogenic GHG emissions as pollution of the marine environment based on the cumulative fulfilment of all three criteria (paras. 159-179).

The Tribunal held that under Article 194, paragraph 1, State Parties have specific obligations to take all necessary measures to prevent, reduce, and control marine pollution from GHG emissions. These measures must be guided by the best available science and international standards, including the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement, which aim to limit global temperature increase to 1.5°C above pre-industrial levels. The scope and content of these measures may vary according to States’ capabilities and available resources. Measures should include significant reductions in GHG emissions (para. 258).

Additionally, under Article 194, paragraph 2, States are required to ensure that GHG emissions within their jurisdiction do not harm other States or spread beyond their national borders. This transboundary obligation is particularly stringent due to the high risk of serious and irreversible harm from such emissions. The Tribunal emphasised that States must adopt laws and regulations to control pollution from land-based sources, vessels, and atmospheric sources, per Articles 207, 211, 212, 213, and 222 of UNCLOS. These regulations should align with internationally agreed rules and standards (para. 260).

The Tribunal also argued that the Paris Agreement is not considered a lex specialis to the UNCLOS. It emphasised that while both the UNFCCC and the Paris Agreement are primary legal instruments addressing climate change, they do not modify or limit the obligations under UNCLOS. Specifically, Article 194, paragraph 1, of UNCLOS imposes a distinct and stringent obligation on States to take all necessary measures to prevent, reduce, and control marine pollution from GHG emissions. Compliance with the Paris Agreement does not suffice to meet this obligation under UNCLOS. Instead, the Paris Agreement complements UNCLOS by providing relevant international rules and standards, but it does not supersede or replace the specific obligations set forth in UNCLOS. The Tribunal concluded that the principle of lex specialis derogat legi generali is not applicable in this context, as the Paris Agreement and UNCLOS serve different legal functions and address separate aspects of environmental protection (paras. 219-224).

The Tribunal also underscored the importance of international cooperation under Articles 197, 200, and 201. It held that States are obligated to work together through competent international organisations to prevent marine pollution from GHG emissions. This cooperation includes formulating and elaborating rules, conducting scientific research, and sharing information on the risks and remedies of marine pollution from GHG emissions. Furthermore, under Articles 202 and 203, States must assist developing and vulnerable States through capacity-building, technology transfer, and financial aid (paras. 321-322, 367).

Question 2: Responsibilities to Protect and Preserve the Marine Environment

In response to the second question, the Tribunal indicated that Article 192 of UNCLOS imposes a broad obligation on States to protect and preserve the marine environment from any harm or threat, including those posed by climate change and ocean acidification. This obligation includes taking preventive measures to anticipate risks and mitigate their impacts. When the marine environment has been degraded, States may be required to undertake restoration efforts (paras. 384-386).

The Tribunal further explained that under Article 194, paragraph 5, States have a specific obligation to protect rare or fragile ecosystems and the habitats of threatened or endangered species from climate change impacts. This protection requires proactive and precautionary measures (para. 406).

Additionally, Articles 61 and 119 mandate States to conserve living marine resources threatened by climate change, using the best available science and considering environmental and economic factors. This includes applying the precautionary approach and an ecosystem-based approach to management (paras. 414, 418).

The Tribunal noted that Articles 63 and 64 obligate States to consult and cooperate with each other to coordinate effective conservation measures for shared stocks, considering the impacts of climate change and ocean acidification. Article 118 further requires States to cooperate in conserving living marine resources in the high seas (para. 423)

Lastly, the Tribunal emphasised that under Article 196, States are required to prevent, reduce, and control pollution from non-indigenous species introduced due to climate change, which may cause significant marine environmental changes. This obligation also necessitates the application of the precautionary approach to mitigate the adverse effects of such introductions (para. 436).

Conclusion:

The ITLOS’s advisory opinion provided a detailed interpretation of the obligations of State Parties under UNCLOS in the context of climate change. It confirmed that anthropogenic GHG emissions constitute pollution of the marine environment and that States have a duty to take all necessary measures to prevent, reduce, and control such pollution, guided by the best available science and international standards, including the UNFCCC and the Paris Agreement. It emphasised that the Paris Agreement is not considered a lex specialis to the UNCLOS. The Tribunal emphasised the importance of international cooperation, stringent regulatory measures, and proactive strategies to mitigate the adverse impacts of climate change on the marine environment. States are also required to assist developing and vulnerable nations in their efforts to combat these impacts. Additionally, the Tribunal highlighted the broad obligation to protect and preserve the marine environment from climate change, including the protection of rare ecosystems and the conservation of living marine resources.

By Pranav Ganesan, PhD candidate at the University of Zurich

This is the third and final part of the three-part series of blogposts summarizing and analysing the European Court of Human Right’s (‘ECtHR’) judgment in the case of Verein KlimaSeniorinnen Schweiz and Others v Switzerland (click here for part 1, and here for part 2). Here, I will cover the rest of the judgment, starting with the applicants’ claims as to the violation of their right under Article 6 of the European Convention of Human Rights (ECHR), before sharing my concluding thoughts about the judgment. While the Court’s finding that Switzerland violated Article 8 seems to have stolen the limelight, it is important not to lose sight of the implications that its findings on Article 6 may have for domestic courts across all Council of Europe member States.

Right to a fair trial (civil limb): Swiss courts’ dismissal of the applicants’ complaints

In contrast to its approach with respect to Articles 2 and 8 of the ECHR to this case, the Court analysed the questions as to the applicants’ victim status and applicability of Article 6 to their case together. For Article 6(1) to apply in its civil limb, three criteria must be met: the applicant must have a right of a civil nature, there must be a genuine and serious dispute, and the outcome of such dispute must be directly decisive for that right (this last limb shall be referred to as the ‘direct decisiveness test’). Interestingly, the Court also decided to provide a general comment on the applicability of Article 6(1) in the climate litigation context.

Article 6(1) in the Context of Climate Litigation

On a general note, the Court held that Article 6 ‘cannot be relied upon to institute an action before a [domestic] court for the purpose of compelling Parliament to enact legislation’ (para 609). This can be understood as an implicit remark on the implications of Article 6 on the right to bring framework climate litigation before courts in Contracting Parties. While Contracting Parties must allow legal avenues for the redressal of rights violations caused by regulations and measures on climate mitigation (or a lack thereof), they are not obligated under Article 6(1), to provide for individual legal rights to trigger judicial review of legislation in abstracto.

Specifically with respect to the first criterion for Article 6(1) to be applicable, the Court found: first, that a substantive right of a civil nature may exist in light of the causal link between States’ acts or omissions relating to climate change and interests protected by the domestic law right of individuals to be protected from ‘the harm, or risk of harm’ (para 519, 610). Second, a procedural right of a civil nature may exist given States’ transposition of the international environmental law principle of ‘participation of the public and access to information in matters concerning the environment’ into domestic law as a matter of right (para 610).

For the purposes of the ‘direct decisiveness test’, the breadth of the object of the dispute typically makes it easier (or harder) to draw a direct connection between the dispute and the impact on the right. However, given that the object of climate litigation is rather broad, the Court thought it appropriate to take some special considerations into account when assessing the test of direct decisiveness. For instance, the direct decisiveness test requires applicants to prove the imminence of the harm or danger that they allege to their protected interests. However, the Court suggested that the ‘potential for irreversible consequences and corollary severity of harm’ that risks linked with climate change entail, blunts this strict standard. The Court thought that an approach to the contrary would ‘unduly limit access to a court for many of the most serious risks associated with climate change’ (para 614).

Victim Status and Applicability of Article 6(1) ECHR

The Court found that the claims raised by the applicants before the Swiss courts, whose rejection constituted the dispute under Article 6(1) in the instant case, needed to be nuanced. The part of the action where the applicants argued that Switzerland must do better in terms of legislating on and regulating emissions of greenhouse gasses from within and beyond Switzerland under their control, thus amounting to framework climate litigation, fell outside the scope of Article 6(1). However, the part of the action where the applicants challenged the Swiss authorities’ failure to implement measures pursuant to the emissions reduction target of 20% by 2020 did fall within the scope of Article 6(1). Thus, whether this part of the action satisfied the other criteria for the application of the provision was all that remained to be seen.

The right to protection of physical integrity under Article 10 of the Swiss Constitution was determined as a right of a civil nature (para 617). The claim regarding the non-implementation of mitigation measures raised a serious and genuine dispute between the applicants and the Swiss government (para 618). As for the direct decisiveness test, the Court held that the same reasons why the individual applicants could not be recognized as victims for the purposes of Article 8, suffice in finding that the outcome of the case was not directly decisive for their rights. The Court held that ‘their dispute had a mere tenuous connection with, or remote consequences for, their rights relied upon under national law’ (para 624).

However, it held differently in relation to the applicant association’s dispute, and therefore its victim status for its complaint regarding lack of access to court. The justification underlying the applicant association’s standing to litigate Article 8 was reiterated in connection to Article 6. The Court held that the direct decisiveness test must be understood in a broader sense, in so far as the dispute reflects the collective dimension of human rights protection which the Court had already recognized when it recognized the association’s standing before the Court to claim an Article 8 violation (para 622).

Merits: Violation of Article 6(1) ECHR

The right of access to a court includes not only the right to institute proceedings but also the right to obtain a determination of the dispute by a court (para 629). The Court found that there had been a limitation of this right, as the applicant association’s complaints were dismissed without any examination of the merits at all three instances of domestic proceedings (first by the federal administrative authority for the environment, and then by an appellate court and the federal supreme court of Switzerland). This limitation was found to be disproportionate to the legitimate aim of preventing actio popularis complaints. The Court held that the applicant association’s action for the implementation of mitigation measures ‘cannot automatically be seen as an actio popularis or as involving a political issue which the courts should not engage with’ (para 634). The reason for this is that anthropogenic climate change may affect human rights, and it is an urgent need to address the threats it poses.

The administrative authority and Swiss courts were found neither to have sufficiently examined the scientific evidence concerning climate change and the urgency as regards the existing and inevitable future impacts (para 635), nor to have seriously (or at all) engaged with the applicant association’s complaint, which was separate from the individual applicants’ complaint (para 636). Therefore, the Court held that the limitation of the applicant’s right of access to a court had been unduly limited, in contravention of Article 6(1).

The Court’s former finding needs to be critically analysed. The relevant part of the judgment reads:

The Court is not persuaded by the domestic courts’ findings that there was still some time to prevent global warming from reaching the critical limit […] This was not based on sufficient examination of the scientific evidence concerning climate change, which was already available at the relevant time, as well as the general acceptance that there is urgency as regards the existing and inevitable future impacts of climate change on various aspects of human rights. (para 635).

To recap, the Swiss Federal Supreme Court (FSC) had found that rights under Article 10 of the Swiss Constitution were not implicated in the dispute because there was still time to prevent global warming from exceeding the critical limit (of 2 °C increase in average global temperatures) (see para 59). On the issue of time, the FSC relied on the 2018 Special Report of the IPCC, which noted that ‘global warming would reach 1.5 °C around the year 2040 (likely range 2030 to 2052), provided that it continued at the current rate’ (para 58). In its jurisprudence, the Court has been clear that it is generally not its task to deal with errors of fact or law allegedly committed by domestic courts, unless they are arbitrary or manifestly unreasonable (see para 626). So, was the error committed by the FSC “arbitrary or manifestly unreasonable”? If so, why? Or, was this case an exceptional one, making it relevant for the Court to deal with an ordinary error?

The judgment does not answer these questions. Overall, the judgment seems to be conveying a message to domestic courts of parties to the ECHR, to take climate change seriously. But it effectively leaves it to them to reflect on the errors they must avoid committing when faced with climate litigation in the future.    

Conclusion

The applicants in this case believe that they have achieved a historic victory. However, a lone voice from the Grand Chamber expressed worry that the majority, by arriving at the conclusions detailed above, are ‘giving (false) hope that litigation and the courts can provide “the answer” without there being, in effect, any prospect of litigation (especially before this Court) accelerating the taking of the necessary measures towards the fight against anthropogenic climate change’ (dissenting opinion of Judge Eicke, 69). It is debatable whether the judgment will move states to change their tune and actions in line with broad concerns of climate justice, especially considering the Court’s silence on equity and the injustice entailed in a few major polluters’ conduct vis-à-vis the most vulnerable populations, living far away from its borders. But it is safe to say that it will have significant implications for parties to the ECHR in terms of how they must proceed with the determination and implementation of their climate mitigation measures.

For Switzerland in particular, this judgment will have two consequences. First, Switzerland was ordered to compensate the applicant association for costs and expenses incurred by it, to the tune of 80,000 Euros, as opposed to approx. 324,000 Euros that was claimed by it (para 650). It is unlikely that Switzerland will refuse to comply with this obligation. Second, Switzerland must take appropriate general or individual measures in its legal order in order to put an end to the violation, subject to the supervision of the Council of Europe’s Committee of Ministers (pursuant to Article 46 ECHR). The content of these measures was left to the Swiss government to determine, since the complexity of the issues involved in compliance rendered the Court ‘unable to be detailed or prescriptive’ (para 657). This is a curious remark, especially considering that earlier in the judgment, the Court was convinced that Switzerland had an obligation to take measures with a view to achieve a net-zero GHG emissions in the next three decades. In any event, it is reasonable to expect that the judgment will result in some progression in Switzerland’s climate change commitments. How significant the progression in Switzerland’s climate targets (set in legislation) ought to be for compliance with the judgment is unclear. At the very least, it will be necessary for Switzerland to provide a high level of clarity in the measures it determines are necessary for their achievement.

By Pranav Ganesan, PhD candidate at the University of Zurich

This blogpost is the second in a three-part series summarizing and analysing the judgment of the European Court of Human Rights (‘ECtHR’) in the case of Verein KlimaSeniorinnen Schweiz and Others v Switzerland (click here for part 1, on admissibility). Here, I will analyse the Court’s findings on States’ climate obligations under Articles 2 and Article 8 of the European Convention of Human Rights (ECHR), and Switzerland’s (non-)compliance with the latter.

Applicability of Articles 2 & 8 ECHR

In its case law, the Court has consistently held that Article 2 of the ECHR would be applicable if the applicant proves a “real and imminent risk” to life. In KlimaSeniorinnen, the Court held that a serious risk of significant decline in a person’s life expectancy owing to climate change could trigger the applicability of Article 2 ECHR (para 513). As for Article 8 ECHR, it held that the provision ‘must be seen as encompassing a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life’ (para 519, emphasis added). However, the Court held that the applicability of the provision to the case depends on the ‘assessment of similar criteria’ to those relevant to the assessment of victim status of individual applicants elaborated by the Court in an earlier part of the judgment (para 520).

After explaining the law on applicability of the two provisions, the Court summarily concluded that it was not necessary to assess the applicability of Article 2 ECHR. The reason it gave for this was that Article 8 of the Convention was applicable in this case without any doubt (para 536). One may question whether such an approach is fair to the applicant association, since a judgment finding that both Articles 2 and 8 ECHR have been breached arguably carries a more significant weight for the respondent State, compared to one that only finds an Article 8 breach. Nevertheless, it held that the same principles as those set out in relation to Article 2 have been applied in cases involving environmental issues under Article 8. Based on this the Court went on to identifying the content of States’ positive obligations under Articles 2 and 8 ECHR in the context of climate change (para 540), and only assessed Switzerland’s compliance with the latter provision.

Nuanced Approach to the Margin of Appreciation

The scope of actions that are required to be taken by a respondent State pursuant to Article 8 of the ECHR is controlled by the breadth of the margin of appreciation it is deemed to enjoy. On the margin of appreciation to be afforded to States in climate cases, the Court took a more nuanced approach than that which it has explained in its environmental case law. The Court distinguished between two types of determinations in this case: ‘the setting of requisite aims and objectives’ in pursuance of commitments to the necessity to combat climate change; and ‘the choice of means designed to achieve those objectives’ (para 543).

In the context of responding to climate change, States were held a broad margin of appreciation in relation to the latter. On the other hand, the Court found that several factors call for a narrowing of the margin of appreciation in relation to setting aims and objectives for climate mitigation. The following factors were identified to suggest that climate change protection must be given considerable weight in balancing against competing considerations: “the urgency of combating the adverse effects of climate change, the severity of its consequences, including the grave risk of their reaching the point of irreversibility, and the scientific, political and judicial recognition of a link between the adverse effects of climate change and the enjoyment of (various aspects of) human rights” (para 542). Moreover, ‘the global nature of the effects of greenhouse gas (GHG) emissions, as opposed to environmental harm that occurs solely within a State’s own borders, and the States’ generally inadequate track record in taking action to address the risks of climate change that have become apparent in the past several decades’ were counted as factors that increase the weight to be afforded to climate change. 

This nuanced approach to the application of the margin of appreciation doctrine is a welcome change, but not one that is surprising given that it is squarely in accordance with the rationale underlying the margin of appreciation doctrine (see Ganesan, 2022, III.B). However, a crucial point was left unaddressed by the judgment – namely, whether (and if so, how) the concept of ‘national fair shares’ of global GHG emissions affects States’ margin of appreciation (Liston, 2020). In simple terms, the concept implies that every State does not have a right to emit equal amounts of GHG. The distribution of the global GHG budget (before tipping points are crossed) must ought to be fair, and national commitments need to be based on this fair distribution.

Content of climate-related obligations under Article 8 ECHR

The key finding in this part of the judgment is ‘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’ (para 545). The details of this primary duty were elaborated by the Court in the paragraphs that followed.

Based on the UNFCCC and the Paris Agreement the Court interpreted this duty as requiring that the ‘regulations and measures’ must be ‘aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, notably the right to private and family life and home under Article 8 of the Convention” (para 546). This reflects the Court’s hesitancy in specifying which of the two negative temperature targets under the Paris Agreement: 1.5 °C and 2 °C (Article 2(1)(a) Paris Agreement), Contracting Parties must premise these “necessary regulations and measures” on. Does this mean that it is within the margin of appreciation for States to determine that their measures should align with a pathway where the 1.5 °C target is exceeded but the 2 °C target is not exceeded? How, when determining whether their measures prevent the a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, must States value the lives, health and well-being of individuals beyond their jurisdiction?

In a controversial move, the Court also concluded that it is, in principle, not within parties’ margin of appreciation to allow themselves more than three decades in achieving net-zero emissions or commit to an insubstantial or regressive GHG emissions reduction target (para 548). The controversy stems from the fact that the Court cites no legal basis for making this conclusion. The considerations preceding this finding do not indicate where the Court derives this thirty-year period from. The Paris Agreement only calls for the achievement of global net-zero in (not before) the second half of this century (Article 4.1). In a move that is reminiscent of the German Constitutional Court’s finding in the 2021 Neubauer judgment from the German Constitutional Court, the Court also held that the achievement of net-zero cannot be pursued in a manner that imposes a disproportionate burden on future generations (para 549). However, rather than adopt the ‘advanced interference-like effect’ thesis used in that judgment, the Court seems to be relying on Article 3 of the UNFCCC, which states that Parties “should protect” the climate system for the benefit of present and future generations of humankind (para 420, where the Court confuses the UNFCCC’s non-binding call for protection of the climate system for future generations as an obligation). The legal basis underlying the need for States’ emissions reductions commitments to be “substantial and progressive” is also not mentioned. The Court was presumably deriving this interpretation from Article 4.3 of the Paris Agreement. As I have argued elsewhere, the principle of non-retrogression in international human rights law could also play an interpretive role in the context of their obligation to undertake emissions reductions. However, this was not referenced by the Court.

In paragraph 550, the Court detailed the concrete parameters for reviewing Contracting Parties’ determinations which set the ‘requisite aims and objectives’ in relation to their commitments to combat climate change. This paragraph is worth quoting in full:

When assessing whether a State has remained within its margin of appreciation (see paragraph 543 above), the Court will examine whether the competent domestic authorities, be it at the legislative, executive or judicial level, have had due regard to the need to:

(a) adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments;

(b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;

(c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see sub- paragraphs (a)-(b) above);

(d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and

(e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.

The paragraph uses soft language. It requires State authorities to have “due regard to the need to” do rather than do the things mentioned in (a) to (e). This makes sense because the Court, in reviewing the balancing process underlying State authorities’ determinations as to what measures it must take to fulfil its positive obligations under Article 8, cannot substitute their own judgment for that of the State. The Court also clarifies that a shortcoming in one respect will not lead to a conclusion that the State has overstepped its margin of appreciation – the assessment will be of an overall nature (para 551).

The Court regarded effective adaptation measures as a necessary component of positive obligations under Article 8 and framed these measures as supplementary to mitigation measures (para 552). Here, it would have been desirable for the Court to identify  the principles on the basis of which States must act in light of the inherent tension between taking mitigation and adaptation action (Keller and Ganesan, 2023). Lastly, the Court recognized that procedural safeguards need to be “taken into account” as regards States’ decision-making process in the context of climate change (para 554).  

Assessment of Switzerland’s Conduct

The Court only assessed Switzerland’s positive obligations to commit to and implement mitigation measures, without analysing whether the “ancillary adaptation measures were put in place,” considering that it was able to conclude that there was a violation on the basis of the former (para 555). In terms of the scope of Switzerland’s conduct, the Court held that it will analyse the measures taken after May 2020 as well (i.e. measures which were not the subject of prior domestic litigation) (para 556).

The Court refrained from resolving the disagreement between the applicants and the Swiss government on the legal salience of the studies by Lavanya Rajamani et al., Climate Action Tracker, and Climate Analytics to contrast Switzerland’s climate policies with the level of GHG emissions which would put it within its ‘fair share’ of global emissions (para 557). This disagreement was crucial, because the applicants’ plea was for the Court to rely on these studies to make a concrete finding as to the sufficiency of the specific emissions reduction targets. The Court decided that it was unnecessary to adjudicate this issue because it was able to find a violation based on the lack of due diligence exercised by Switzerland. A finding in favour of the applicants on this point could have possibly led to the Court making a more stinging finding against Switzerland: that it is presumptively responsible for using more than its fair share of the global GHG emissions budget (Liston, 2020). Instead, the Court ended up finding that ‘some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework’ sufficed to prove a violation of Article 8 (para 573). The Court’s assessment in the lead up to the finding of these lacunae were done in about 4 pages of the judgment (paras 558-572), and can be summed up as follows:

1. Insufficiency of the target set by the 2011 CO2 Act (para 558): The legislation called for an overall emissions reduction of 20% by 2020, compared to 1990 levels. This was contrasted against the Swiss Federal Council’s own assessment dating back to 2009 that industrialised countries such as itself had to reduce their emissions by 25-40% by 2020 compared to 1990 levels in order to limit global warming to 2-2.4 °C above pre-industrial levels (note: at that time, there was no consensus amongst States on the two Paris Agreement temperature targets of 1.5 °C and 2 °C).
2. The emissions reduction target set to be achieved by 2020 was missed by Switzerland (para 559).Apart from pointing out this outcome, the Court does not explain why missing this target sufficed to conclude that Switzerland’s conduct in the lead-up to this result was faulty. Positive obligations under Article 8 are obligations of conduct, not obligations of result. While it is arguable that missing the 20% emissions reduction target is relevant in analysing Switzerland’s compliance with positive obligations, it cannot per se lead to a conclusion that there has been a violation. The Court should have thus explained what it intended in this part of the assessment, or whether it had tacitly applied a presumption against Switzerland, which it failed to rebut.
3. Regulation should indicate not just short-term targets but also medium and long-term targets (para 561). The Court found that despite having taken the opportunity to revise the 2011 CO2 Act in 2021, Switzerland left the time period un-regulated (i.e. by not specifying emissions reductions targets for relevant time periods after 2024) when it revised the 2011 CO2 Act (para 561). Similarly, under the latest Climate Act of 2022, the period between 2025 and 2030 remains unregulated (para 562). This, in the Court’s view is incompatible with point (a) in para 550, quoted above.
4. Regulation should supplement targets with details of concrete measures: In regards to the latest Climate Act of 2022, wherein Switzerland incorporated its objectives that were part of its NDC  under the Paris Agreement into national law, the Court held that ‘the concrete measures to achieve those objectives are not set out in the Act but rather remain to be determined by the Federal Council and proposed to Parliament “in good time”’ (para 566). The Court noted its difficulty accepting that a mere legislative commitment to adopt concrete measures in “good time” satisfies the State’s duty under Article 8, when seen in the context of the “pressing urgency of climate change” (para 567). 
5. Carbon budget approach: The Court was unconvinced by Switzerland’s argument that the determination of Switzerland’s carbon budget was not possible and hence its non-pursuance was justified. It cited the Neubauer case, wherein the German Constitutional Court found that such a calculation was possible and could be relied on as a factor that legally constrains the policy measures that Germany could take (in particular, preventing it from using up the budget in a manner that imposes a disproportionately burden on future generations). The Court also pointed, for comparative purposes, to the indicative EU carbon budget under European Climate Law (para 571). Based on this, it held that the absence of any domestic measure ‘attempting to quantify [Switzerland’s] remaining carbon budget’ made it difficult for the Court to accept that Switzerland complied effectively with Article 8 (para 572).

Reflections on the Court’s Reasoning

There is an unease I encountered when going from the Court’s findings as to what climate-related obligations are found to exist under Article 8 of the ECHR, to the reasons why Switzerland violated these obligations. To begin with, the Court clearly held that the concrete measures listed in paragraph 550 must be given ‘due regard,’ when Contracting Parties perform their ‘primary duty’ to put in place a regulatory framework for climate mitigation under Article 8. But then, its analysis of Switzerland’s conduct reads as though those concrete measures were benchmarks which it must have achieved, rather than factors which it should have duly regarded. My sympathies lie with the judges (and case lawyers at the Court) who faced the mammoth task of performing several layers of analysis and condensing the same into four pages. However, the judgment was left wanting of an explanation on why the apparent incongruence between actions taken by the Swiss legislature and the actions listed in paragraph 550 sufficed to conclude a lack of ‘due regard.’

By Pranav Ganesan, PhD candidate at the University of Zurich

The European Court of Human Right’s (‘ECtHR’) judgment in the case of Verein KlimaSeniorinnen Schweiz and Others v Switzerland (including the partially dissenting opinion of Judge Tim Eicke) is a whopping 250 pages long, making it the longest judicial opinion on climate change to date! This judgment will likely be the subject of praise, scrutiny, criticism and debate amongst scholars and non-scholars alike for the next few months or even years. It is certainly one for the books.

This series of blogposts will summarize and present my initial analysis of this judgment. Caveat lector, these posts will be long, but their length is befitting considering the sheer length of the judgment. It will begin with some special mentions, before analysing three issues in detail, viz. admissibility of the complaints under Articles 2 and 8 of the European Convention on Human Rights (‘ECHR’) on the ground of ‘victim status’. In the second part of this series, I will analyse the Court’s findings on obligations of ECHR parties to take measures addressing climate change under Article 8 of the Convention as well as the Court’s assessment of Switzerland’s conduct. In the third and final part, I will analyse the Court’s findings as to the admissibility of the complaints and the claim regarding violations of the applicants’ right of access to court under Article 6(1) of the ECHR. I will cap this series with my reflections on what this judgment means for Switzerland.   

Special Mentions

A case marked by dynamic developments in facts

After beginning with the procedural history of the case and facts arising from the domestic legal proceedings involving the applicants as per usual, the Court dedicates a considerable amount of space in the judgment in establishing the context surrounding the problem of climate change (paras 64-120). These covered, inter alia, the implications of an increase in the global average temperature by 1.5 °C, mitigation requirements needed to avoid hitting the 1.5 °C threshold, and the imperative need for rapid, deep and sustained mitigation action and accelerated implementation of adaptation measures to reduce losses and damages for humans and ecosystems. These were based on the reports of the Intergovernmental Panel on Climate Change (IPCC) and decisions taken at Climate COPs. It is interesting to note here that the Court presents the latest scientific evidence from the IPCC, including reports which were published after the legal proceedings in Switzerland and the date that the application was filed before the ECtHR. This was an early sign that the Court was not merely going to freeze the dispute as one pertaining to Switzerland’s conduct that was impugned before the Swiss courts, but also evaluate how Switzerland shaped its climate policy in response to developments in climate science.

Causation: Linking climate change and harm to individuals

A common argument that is made by states in climate change litigation is that their individual efforts (or lack thereof) to mitigate climate change cannot be causally linked with the risks of harm to individuals, flowing from the adverse impacts of climate change. This argument is typically mounted to reject the notion that individual litigants can be regarded as having been aggrieved by the State’s conduct, and to de-link the obligation to mitigate climate change from human rights. However, the Court rejected this argument noting that ‘issues of individual victim status or the specific content of State obligations cannot be determined on the basis of a strict conditio sine qua non requirement’ (para 439). The ‘special features of the problem of climate change’ make it necessary to adapt the approach to causation, and thereby, to the issue of whether the positive obligations of States to mitigate risk of adverse consequences to human lives, health and well-being will be triggered (para 440). Proof that ‘reasonable measures which the domestic authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm’ is sufficient to engage the responsibility of the State (para 444).

Individual State responsibility for share in contributions towards climate change

The Court cited its judgment in Duarte Agostinho and Others v Portugal and 32 Others, to affirm that ‘each State has its own share of responsibilities to take measures to tackle climate change and that the taking of those measures is determined by the State’s own capabilities rather than by any specific action (or omission) of any other State’ (para 442).

‘Victim’ Status: Applicants’ Complaint under Article 2 and 8 ECHR

A novel basis for NGOs to litigate violations of Article 2 and 8 ECHR

An issue on which this judgment broke new ground was that of standing of associations of persons or NGOs (i.e. non-natural persons) to litigate as representatives of individual victims of human rights violations. The relevant part of Article 34 of the ECHR states:

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention or the Protocols thereto.

It has been clear from the Court’s jurisprudence on Article 34 that NGOs do not have locus standi to initiate litigation alleging that they themselves are “victims” of violations of Article 2 and 8 of the ECHR, as the interests protected thereunder (viz. life, health and well-being) can only be enjoyed by natural persons. However, on the separate issue of whether they may represent victims of human rights harms, the Court had held that their standing to bring such claims may exceptionally be recognized (emphasis on exceptionally, because the Court has held that the Convention does not allow actio popularis). The case where such representative locus standi was recognized for the first time was Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania. In this case, the Court exceptionally recognized the locus standi of an NGO to appear before the Court in arguing the claim that the Romanian government had violated the right of a mentally disabled young man who had been mistreated and died in a psychiatric hospital, who had no next of kin, representative or guardian who could otherwise pursue his matter. This judgment was upheld in a subsequent case, where another NGO’s standing as a de facto representative of the individual victim was upheld. The rationale for adopting a novel approach to NGO standing in this case was the ‘principle of effectiveness’ which militates against the adoption of an excessively strict approach to standing since doing so ‘would exclude applicants who would otherwise have no chance of having their rights vindicated’ (Keller and Gurash, 2023, p. 204). In a similar move, but based on an entirely different thesis, the Court concluded that the association: Verein KlimaSeniorinnen Schweiz, had standing to appear before the Courts as representatives of victims of the adverse impacts of climate change under Article 8 ECHR (para. 526).

It reasoned that “there has been an evolution in contemporary society as regards recognition of the importance of associations to litigate issues of climate change on behalf of affected persons” (para 497) and “specific considerations relating to climate change weigh in favour of recognising the possibility for associations, subject to certain conditions, to have standing before the Court as representatives of the individuals whose rights are or will allegedly be affected” (para 498). It added that the “special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context [citing para 489], speak in favour of recognising the standing of associations before the Court in climate-change cases.” It is apparent that the Court intends to limit the relevance of this novel basis for standing only to climate change litigation. To justify this finding as consistent with its position that the Convention framework does not allow actio popularis cases, the Court identified specific limiting criteria on what kind of association or NGO can benefit from this novel basis for standing in paragraph 502:

[T]he association in question must be: (a) lawfully established in the jurisdiction concerned or have standing to act there; (b) able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change; and (c) able to demonstrate that it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention.

In this connection, the Court will have regard to such factors as the purpose for which the association was established, that it is of non-profit character, the nature and extent of its activities within the relevant jurisdiction, its membership and representativeness, its principles and transparency of governance and whether on the whole, in the particular circumstances of a case, the grant of such standing is in the interests of the proper administration of justice.

An aspect of this judgment which is ripe for scrutiny is its use language that implicitly precludes environmental associations from being able to bring other environmental cases before the Court (See Keller and Gurash, 2023, who argue for NGO standing in environmental cases). Indeed, a seed for allowing such a broad approach could be found as early as 2004 in the Court’s judgment in Gorraiz Lizarraga and Others v Spain, wherein it remarked:

[I]n modern-day societies, when citizens are confronted with particularly complex administrative decisions, recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to them whereby they can defend their particular interests effectively. (para 38)

Victim status of individuals affected by climate-related harm

The Court’s approach to NGO standing in climate litigation outlined above is a head-scratcher when seen in contrast to the Court’s analysis of the victim status of four elderly women who were the individual applicants nos. 2-5 in the KlimaSeniorinnen case. The conclusion that the association has standing under the afore-described thesis, may appear to carry with it the implication that the individuals it sought to represent in this case were victims of alleged human rights violations. However, that is not the case – the individuals were held not to qualify as ‘victims’ under Article 34 ECHR.

At the outset, the Court held that its judicial function is reactive rather than proactive (para 481), and that it will not recognize the victim status of individuals whose rights are yet to be infringed. For individual climate change litigants, the Court held that two criteria need to be fulfilled for their qualification as victims:

“(a) high intensity of exposure of the applicant to the adverse effects of climate change; and (b) a pressing need to ensure the applicant’s individual protection” (para 487).

In addition to this, the Court noted that the threshold for fulfilling these criteria is ‘especially high’ and noted (what I can count as) nine factors that Court will take into consideration in assessing the fulfilment of this criteria: ‘the nature and scope of the applicant’s Convention complaint, the actuality/remoteness and/or probability of the adverse effects of climate change in time, the specific impact on the applicant’s life, health or well-being, the magnitude and duration of the harmful effects, the scope of the risk (localised or general), and the nature of the applicant’s vulnerability’ (para. 488). While intended to clarify the height of the threshold for meeting the criteria, and what goes into the calculus of ‘high intensity of exposure’ and ‘pressing need to ensure individual protection,’ these factors muddy the waters since it is unclear what relative weight each of these factors will carry in the assessment.

Based on an assessment of the materials submitted before it, the Court concluded that the individual applicants nos. 2-5 did not meet these criteria. The Court reasoned that ‘it cannot be said that the applicants suffered from any critical medical condition whose possible aggravation linked to heatwaves could not be alleviated by the adaptation measures available in Switzerland or by means of reasonable measures of personal adaptation given the extent of heatwaves affecting that country’ (para 533). This approach to factoring the availability and access to local adaptation measures in the assessment of victim status has its own problems (Keller and Ganesan, 2023).

However, the overall position that comes through from a full reading of the Court’s assessment of the applicants’ victim status is this: In the context of climate change litigation, an association or NGO, despite not being a ‘victim’ itself, may have standing to appear before the Court in a representative capacity, and claim that human rights of individuals who themselves do not qualify as ‘victims’ have been violated. A real headscratcher. Doctrinally, squaring this circle, requires accepting that there is a unique conception of individual victims who are representees of an NGO with locus standi to appear before the Court. These representee victims need not meet the criteria that is set for individual victims under Article 34 ECHR.

Concluding Remarks

In its KlimaSeniorinnen judgment, the Court seems to be saying: the bar that we set for individuals to bring climate litigation is very high; so high that it is effectively impossible for them to bring admissible complaints of serious human rights violations linked with States’ climate inaction before it is too late to do anything to mitigate climate change. We think it is best to resolve the injustice that this high bar (that we have set) represents by allowing NGOs to applications on their behalf. One may ask, why the Court could not just bring down the high bar for individual applicants to demonstrate victim status? The answer is one based in the Court’s approach to balancing policy tensions, and there is reasonable room for debate on what role pragmatism should play in how international courts perform their function.

By Ayyoub (Hazhar) Jamali, postdoctoral researcher at the University of Zurich

1. Introduction

In a landmark case that garnered global attention, six Portuguese youth took a bold step on 2 September 2020, filing a complaint with the European Court of Human Rights (ECtHR) against 33 countries of the Council of Europe. Their objective was to hold these nations accountable for their insufficient actions on climate change, citing violations of fundamental human rights. The six young activists argued that the respondent states had failed to meet their positive obligations under Articles 2 and 8 of the European Convention on Human Rights (ECHR), especially considering commitments made under the 2015 Paris Climate Agreement. They contended that the impacts of climate change in Portugal, such as devastating forest fires and life-threatening heatwaves, directly infringed upon their right to life and respect for private and family life. Furthermore, they highlighted their generation’s disproportionate vulnerability to the most severe effects of climate change, alleging a violation of Article 14 of the ECHR on non-discrimination. On 27 September 2023, a hearing was held, drawing global attention. Respondent states largely combined their submissions, with additional arguments from the Netherlands, Portugal, and Turkey. Third-party interveners, including the Council of Europe Commissioner for Human Rights, the European Commission, and the European Network of National Human Rights Institutions, also presented their perspectives. The hearing primarily focused on admissibility issues, such as victim status, exhaustion of domestic remedies, and particularly the extraterritoriality of Convention obligations.

2. The Court’s Judgment

After months of anticipation, the ECtHR delivered its judgment on 9 April 2024. The Court found the case inadmissible on two key grounds. Firstly, it ruled out jurisdiction regarding non-territorial states, narrowing the scope of accountability in this complex legal landscape to applicants’ home states. Secondly, it dismissed the application against Portugal due to a lack of exhaustion of domestic remedies.

2.1 Extraterritorial Jurisdiction

The Court acknowledged its jurisdiction concerning Portugal but denied it concerning other non-territorial states. It recognized that under Article 1 of the Convention, jurisdiction primarily pertains to territorial boundaries, implying that individuals can only claim Convention violations against the territorial state where they reside. However, the Court reiterated that the Convention’s reach can extend beyond national borders in two main forms: when a state exercises effective control over an area (spatial concept of jurisdiction, or jurisdiction ratione loci), and when there is state agent authority or control over individuals (personal concept of jurisdiction, or jurisdiction ratione personae) (para 170). In the present case, as neither of these two criteria appeared applicable, the Court denied jurisdiction within the meaning of Article 1 ECHR.

Furthermore, the Court rejected the applicant’s argument that there are ‘exceptional circumstances’ and ‘special features’ for establishing the respondent states’ extraterritorial jurisdiction over the applicants within the specific context of climate change. It emphasized that determining whether the ECHR applies extraterritorially requires examining whether ‘exceptional circumstances’ exist, indicating that the state concerned is exercising extraterritorial jurisdiction over the applicants. This primarily involves exploring the nature of the link between the applicants and the respondent state.

The Court acknowledged that states have ultimate control over public and private activities within their territories that produce greenhouse gas emissions. It noted their international-law commitments, particularly those outlined in the Paris Agreement, which states have incorporated into their domestic laws and policy documents, as well as their Nationally Determined Contributions (NDC) under the Paris Agreement (para 192). Furthermore, the Court recognized the complex and multi-layered causal relationship between activities within a state’s territory that produce greenhouse gas emissions and their adverse impacts on the rights and well-being of individuals residing outside its borders (para 193). It emphasised that while climate change is a global phenomenon, each state bears responsibility for addressing it. However, the Court concluded that these considerations alone cannot justify creating a novel ground for extraterritorial jurisdiction through judicial interpretation or expanding existing ones (para 195). It emphasised that the ECHR protection system is primarily based on principles of territorial jurisdiction and subsidiarity.

The Court further denied the applicants’ claim that bringing a case against Portugal alone would be ineffective and that they had no other means of holding the respondent states accountable for the impact of climate change on their Convention rights. It distinguished between jurisdiction and responsibility, which constitutes a separate matter to be examined in relation to the merit of the complaint (para 202).

The Court further rejected the applicants’ claim concerning the reach of the Convention outside of national boundaries by their reliance on a test of ‘control over the applicants’ Convention interests’. It reasoned that, according to its established case-law, extraterritorial jurisdiction as conceived under Article 1 ECHR requires control over the person him- or herself rather than the person’s interests as such (para 204-206). It highlighted that, except for specific cases under Article 2 concerning intentional deprivation of life by state agents, there is no precedent for a criterion like ‘control over Convention interests’ as a basis for extraterritorial jurisdiction (paragraph 205). Consequently, the Court argued that adopting such an extension would represent a significant departure from established principles under Article 1.

The Court stated that otherwise, and given the multilateral dimension of climate change, almost anyone adversely affected by climate change anywhere in the world could be brought within the jurisdiction of any Contracting Party for the purposes of Article 1 ECHR in relation to that Party’s actions or omissions to tackle climate change. It also rejected the suggestion that such an extension of jurisdiction could be limited to the Convention’s legal space. It reasoned that, given the nature of climate change, including its causes and effects, an extension of extraterritorial jurisdiction by reference to that criterion would be artificial and difficult to justify (para 206).

Moreover, the Court acknowledged the significance of developments in international law, particularly with regards to the interpretations provided by bodies such as the Inter-American Court and the Committee on the Rights of the Child (CRC). It recognised the relevance of these interpretations in shaping the understanding of jurisdiction within the context of human rights treaties. However, the Court noted that these bodies had adopted distinct notions of jurisdiction, which had not been recognised in its own case-law. While the Court considered the insights provided by these international instruments and bodies, it concluded that they did not provide sufficient grounds for extending the extraterritorial jurisdiction of respondent states under the Convention, particularly as proposed by the applicants (para 209-210). Therefore, while remaining attentive to legal developments and global responses to issues such as climate change, the Court found no basis within the Convention for expanding extraterritorial jurisdiction as advocated by the applicants.

In conclusion, the Court found no grounds in the Convention for extending the respondent states’ extraterritorial jurisdiction through judicial interpretation.

2.2 Exhaustion of Domestic Remedies

Regarding Portugal, the applicants’ home state, there was no extraterritoriality issue. Here the Court examined whether effective remedies existed within the Portuguese legal system that the applicants were required to use under the exhaustion of domestic remedies rule. Despite the applicants’ argument that broad constitutional provisions alone could not provide effective and certain remedies, the Court disagreed, highlighting various remedies available in Portugal. These included, for example, constitutional recognition of the right to a healthy environment, actio popularis claims for environmental protection, etc (para 217-223). The Court emphasised the importance of affording domestic courts the opportunity to address issues before having recourse to international remedies. Consequently, the complaint against Portugal was found inadmissible. The Court also rejected the suggestion that it should rule on the issue of climate change before domestic courts had the opportunity to do so, reaffirming the principle of subsidiarity and the role of domestic jurisdictions in adjudicating such matters (para 228).

2.3 Victim Status

The Court found it challenging to determine whether the applicants met the criteria for victim status as set out on the same day in the KlimaSeniorinnen judgment against Switzerland. The lack of clarity is attributed, in part, to the applicants’ failure to exhaust domestic remedies. The Court found that, in any event, the application was inadmissible for the reasons previously outlined. Therefore, the Court declined to examine further whether the applicants could claim victim status (para 229-230).

3. Conclusion

One of the primary issues addressed by the Court was the question of extraterritorial jurisdiction, particularly concerning non-territorial states. Despite acknowledging the gravity of climate change as a global phenomenon and its potential to impact individuals across borders, the Court adhered to a narrow interpretation of jurisdiction under Article 1 of the ECHR. It emphasised the principles of territorial jurisdiction and subsidiarity, concluding that the Convention’s protection system is primarily based on these principles. This decision reflects the Court’s reluctance to expand existing legal frameworks or create novel grounds for extraterritorial jurisdiction through judicial interpretation, despite recognising the evolving nature of international law and global responses to climate change.

Furthermore, the Court’s emphasis on the exhaustion of domestic remedies underscores the importance of allowing national legal systems to address issues before seeking international remedies. Despite the applicants’ arguments regarding the inadequacy of domestic remedies in Portugal, the Court highlighted various legal avenues available within the Portuguese legal system for addressing environmental concerns. This decision reaffirms the principle of subsidiarity and the role of domestic jurisdictions in adjudicating complex matters such as climate change.

By Dr. Viktoriya Gurash, postdoctoral researcher at the University of Zurich

Today, on 9 April 2024, the European Court of Human Rights issued a Grand Chamber decision in Carême v. France, unanimously declaring the applicant’s complaints under Articles 2 and 8 of the European Convention on Human Rights inadmissible ratione personae.

The Court, first, noted that its assessment of Mr Carême’s victim status as a physical person in the climate context will be based on the criteria set out in Verein KlimaSeniorinnen Schweiz and Others v Switzerland, decided on the same day, which includes that: the applicant must be subject to a high intensity of exposure to the adverse effects of climate change; and there must be a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm (para 487 of KlimaSeniorinnen). The Court emphasised that the threshold for fulfilling these criteria is especially high in view of the exclusion of actio popularis cases under the Convention (para 488 of KlimaSeniorinnen).

Using this framework, in Carême, the ECtHR first assessed the reasons adduced by the domestic courts, specifically the Conseil d’État, when rejecting Mr Carême’s standing. Before the national authorities, the applicant argued that the house in which he resided at the time was located close to the coastline and that according to some predictions it would be flooded by 2040, taking into account the effects of climate change. The Conseil d’État found that the area of the municipality of Grande-Synthe was at a very high level of exposure to high risks of flooding and severe drought with the effect not only of a reduction and degradation of water resources, but also significant damage to built-up areas, given the geological characteristics of the soil. However, the Conseil d’État ruled that Mr Carême did not have an interest in bringing proceedings on the basis of the mere fact that his current residence was located in an area likely to be subject to flooding by 2040. The ECtHR adhered to this argument, reasoning that the risk relating to climate change affecting the applicant is of hypothetical nature.

The crucial factor leading to the Court’s decision as regards the applicant’s victim status is that he no longer has any relevant links with Grande-Synthe because he no longer resides in France, nor does he own or rent any property in Grande-Synthe. The Court noted that in his initial application the applicant indicated an address in Grande-Synthe, although at that time he no longer resided in that municipality but in Brussels. In view of this, the Court found moot Mr Carême’s argument that his residence in Grande-Synthe was at a future risk of flooding and that the current situation prevented him from envisaging himself serenely in his home.

The Court held that the applicant had no right to lodge a complaint under Article 34 of the Convention on behalf of the municipality of Grande-Synthe because, in view of the ECtHR’s settled case law, decentralised authorities that exercise public functions are considered to be ‘governmental organisations’ that have no standing. In addition, the Court highlighted that the interests of the residents of Grande-Synthe have, in any event, been defended by their municipality before the Conseil d’État in accordance with national law.

Furthermore, as regards the applicant’s claim that he had developed allergic asthma making him particularly sensitive to air pollution caused by climate change, the Court found that since this issue was not raised in the initial application, it constitutes a new and distinct complaint and falls outside the scope of this case.

On 28 July 2022, the UN General Assembly adopted a Resolution (A/RES/76/300, not yet published) recognizing the human right to a clean, healthy and sustainable environment. The Resolution recognizes the human right to a clean, healthy and sustainable environment, and its relationship with other human rights and existing norms of international law. It passed without opposition, with 161 States voting in favor and 8 abstentions.

The draft of this Resolution was spearheaded by five States (Costa Rica, the Maldives, Morocco, Slovenia and Switzerland), and it was ultimately co-sponsored by over 100 countries as well as enjoying support from numerous civil society organizations and indigenous peoples’ groups. The opposition was led by Russia, and also included Belarus, Cambodia, China, Ethiopia, Iran, Kyrgyzstan, and the Syrian Arab Republic.

This development follows a similar recognition by the UN Human Rights Council in October 2021 (A/HRC/RES/48/13). In its Resolution recognizing this right, the Human Rights Council called on the UNGA to take up the issue. The UNGA’s Resolution responds to this call by taking on a triple planetary crisis: climate change, pollution, and biodiversity loss. It recognizes the right to a clean, healthy and sustainable environment as a human right, and calls for greater global efforts to protect that right. It calls for full implementation of multilateral environmental treaties, and urges international organizations, corporate actors and other stakeholders to adopt policies, enhance international cooperation, strengthen capacity-building and share good practices to ensure a clean, healthy and sustainable environment for all.

This Resolution is not legally binding. As noted by John Knox, the former UNSR for human rights and the environment, “by itself, it will change no policies, enact no new laws, save no forests, stop no pollution. But it can be a powerful catalyst.” This development follows a lengthy struggle to achieve international recognition of this right, which is missing from the main international human rights treaties. Treaty bodies have instead resorted to the “greening” of existing rights to recognize the nexus between environmental protection and the enjoyment of human rights. The recognition of this right by the UNGA not only serves to underscore this nexus, but reflects domestic legal developments in a large number of jurisdictions, especially the constitutional recognition of this right in many countries. It also reflects the recognition of this right in regional instruments such as the African (Banjul) Charter on Human and People’s Rights, the San Salvador Protocol, the Aarhus Convention, and the Arab Charter on Human Rights.

More information:

For a statement by the UN Special Rapporteur on Human Rights and the Environment, David R. Boyd, click here.

For more on delegates’ comments, see here.

A livestream of the UNGA’s meeting is available here.