European Court of Human Rights rules in landmark case that governments must combat climate change

1. Introduction: the Court rules for the first time on climate change and human rights

On Tuesday 9 April 2024, the European Court of Human Rights (the Court) issued its first ever judgment on whether governments have an obligation to combat the effects of dangerous climate change. The Court considered three climate cases in which citizens and an environmental organisation claimed that the respondent governments were pursuing inadequate climate policies which violated their rights as guaranteed in Articles 2 and 8 of the European Convention on Human Rights (ECHR). While Article 2 protects the right to life, Article 8 guarantees the right to respect for private life.

In the first climate case, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the Court concluded that Article 8 ECHR requires governments to take concrete measures to achieve climate objectives and to combat the harmful effects of climate change. In the other two climate cases (Carême v. France and Duarte Agostinho and Others v. Portugal), the Court did not substantively consider the case due to the inadmissibility of the applicants’ complaints. 

The Court's judgment in the first case centred on whether the ECHR applies to climate change issues. While in national proceedings the Dutch and French courts held that the rights and obligations laid down in the ECHR are relevant to this issue, the Swiss national court took the opposite position. This is one of the reasons why the Court’s judgment in these three climate cases was long awaited.

In this article, we first outline the climate change cases that have been brought to court in the Netherlands (section 2). Second, we discuss the general principles for the assessment of climate change cases, as formulated by the Court in the judgments (section 3). Third, we discuss the Court’s ruling in each of the three climate cases (section 4). This article concludes with an assessment of the legal reasoning underlying these judgments (section 5).

2. Climate issues in the Netherlands

Hundreds of climate cases against governments, companies and individuals are pending in courts around the world. A well-known climate case in the Netherlands resulted in the ‘Urgenda judgment’ (ECLI:NL:HR:2019:2006). In this judgment, the Supreme Court found that the Dutch State was liable for the dangerous consequences of climate change. Another example of a Dutch climate case is Milieudefensie and others v. Shell (ECLI:NL:RBDHA:2021:5337). This case concerns Shell's CO₂emissions. The Court of Appeal in The Hague heard Shell’s appeal at the beginning of April 2024. 

The Urgenda judgment was the first court ruling in Europe in which a government was held liable for the consequences of climate change and was ordered to reduce greenhouse gas emissions. This judgment is based on Articles 2 and 8 ECHR. In the Urgenda judgment, the Supreme Court ignored the Dutch State’s request for an ‘advisory opinion’ from the Court on the question whether these articles could be applied to the issue of climate change (paragraph 5.6.4). With the judgments of 9 April 2024, the Court has now provided its own opinion on the matter.

3. According to the Court, Articles 2 and 8 ECHR offer protection against the effects of dangerous climate change under certain conditions

In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no. 53600/20), the Court sets out a number of general principles regarding the admissibility and the applicability of the ECHR in climate cases. Admissibility requires that an applicant qualifies as a victim within the meaning of Article 34 ECHR. 

Admissibility

In climate change cases, the threshold for victim status is high: individual complainants must convincingly argue that they are personally and directly affected by the government's action or inaction. The Court assesses this on the basis of two criteria: 

a. the applicant must be subject to a high intensity of exposure to the adverse effects of climate change, that is, the level and severity of the risk of adverse consequences of governmental action or inaction affecting the applicant must be significant; and

b. 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.

The threshold is high because the ECHR does not provide for an actio popularis: it is not possible to stand up for the interests of others or society as a whole in proceedings before the Court. When assessing whether the above two criteria have been fulfilled, the Court takes into account the concrete circumstances of the case, including but not limited to (i) the prevailing local conditions, (ii) the nature and scope of the applicant’s complaint, (iii) the actuality/remoteness and/or probability of the adverse effects, (iv) the specific impact on the applicant’s life, health or well-being, (v) the magnitude and duration of the harmful effects, and (vi) the scope of the risk and the nature of the applicant’s vulnerability. The mere possibility of climate change leading to future harm is generally insufficient to qualify as a victim and the applicant must de facto distinguish himself or herself from other citizens.

Particularly noteworthy are the Court's considerations regarding the standing of associations. In principle, the Court does not grant victim status to associations which, in line with their statutory objectives, advocate on behalf of others, and declares complaints made by such associations inadmissible. Due to the nature and importance of the issue of climate change, the Court has now formulated an exception to this rule. Indeed, the Court considers that the issue of climate change touches on broader issues, such as the future of humanity and the necessity of promoting intergenerational burden-sharing. As a result, the Court found that association Verein KlimaSeniorinnen Schweiz had a cause of action. However, in order for the standing of the association not to result in an actio popularis, the Court requires the applicant association to fulfil a number of conditions, which are addressed below in section 4.

Applicability of Articles 2 and 8 ECHR

Once the victim status of an individual applicant is established, the Court deems it possible to find a violation of Article 2 ECHR in specific situations in which climate change causes a serious risk to the applicant’s life expectancy. 

However, in situations where Article 2 ECHR is invoked while the person concerned has not died, the Court held that it is necessary to assess whether the applicant has been the victim of an occurrence which by its nature poses a real and imminent risk to his or her life, such as a natural disaster. The Court considers that complaints about the State's failure to combat climate change may therefore also fall under Article 2 ECHR. However, the applicability of Article 2 ECHR cannot operate in abstracto in order to protect the population from any possible kind of environmental harm arising from climate change. Whether there is a real and imminent risk to life depends on the specific circumstances of each case, but the Court considers that in the case of climate change a grave risk of inevitability and irreversibility of the adverse effects is required. 

The Court emphasises that Article 8 ECHR encompasses a right for individuals to effective protection by the State against serious adverse effects on their life, health, well-being and quality of life caused by of climate change. More specifically, given the causal link between the State's actions and/or omissions in relation to climate change and the damage suffered by individuals, the Court derives from Article 8 ECHR a right for affected individuals to enjoy effective protection against the serious and adverse effects of climate change. The State is obliged to provide such protection and has a duty to adopt and implement regulations and measures capable of mitigating the existing and potentially irreversible future effects of climate change, and to effectively apply those in practice. In fulfilling this positive obligation, the Court grants States a certain margin of appreciation. Given the nature and seriousness of the threat posed by climate change, this margin of appreciation is more limited when it comes to the question whether measures should be taken to address the effects of climate change. States have a wider margin of appreciation when it comes to choosing between different means of achieving the objective. Measures taken by States must be effective, which essentially entails acting in good time, and in an appropriate and consistent manner. 

In particular, the Court considers that Article 8 ECHR requires States to take measures for the substantial and progressive reduction of their respective greenhouse gas emission levels, with a view to reaching net neutrality within the next three decades (no later than 2050). In addition, adequate intermediate reduction goals must be set to avoid a disproportionate burden on future generations.

4. The judgment of the Court in the three climate cases

Verein KlimaSeniorinnen Schweiz and others v. Switzerland

The case of Verein KlimaSeniorinnen Schweiz et al. v. Switzerland was brought by four Swiss women and a Swiss association that promotes and implements effective climate protection on behalf of its members . The association represents 2,000 older women, a third of whom are over the age of 75. The four women are all older than 80. They substantiate their claim by underscoring the health problems which older women experience due to climate change-induced heat waves.

Nationally, the applicants took their case concerning the Swiss government's failure to take the necessary measures to combat climate change all the way up to the Federal Court. The Federal Court ruled that neither the applicants’ right to life nor their right to respect for private and family life, home and correspondence was sufficiently affected by this failure. In response, the they brought their application before the European Court of Human Rights. 

Admissibility

As they do not meet the criteria to qualify as victims, the Court declared the complaints of the four individual women inadmissible. Although they belonged to a group which is particularly sensitive to the effects of climate change, this fact alone was insufficient to grant them victim status. In particular, they do did meet the aforementioned criteria of high intensity and pressing need. The Court found that the stress which they suffer as a result of heat waves was not of such a nature that it could not be overcome by adaptation measures.

In contrast, the Court declared the association’s complaint admissible. The Court found that it was in the interests of the proper administration of justice to allow the association to bring proceedings before the Court and that the association satisfied the necessary conditions. The association was lawfully constituted (condition 1), pursued a specific aim in accordance with its statutory objectives (condition 2), and was genuinely qualified and representative to act on behalf of the concerned parties (condition 3). 

Substantive assessment 

The Court noted that, in a CO₂ Act, Switzerland has set the target of reducing CO₂ emissions by 20% compared with the emissions produced in 1990. The Court deemed this target to be insufficient, because the available scientific evidence shows that a reduction of at least 25% compared to 1990 was necessary to meet the commitments under the United Nations Framework Convention on Climate Change. Moreover, the reduction target of 20% was not met, as only 11% reduction was actually achieved. The Court also found that for a considerable part of the period up to and including 2030, there was a gap in Swiss climate change regulation. Multiple factors contributed to this finding. First, an amendment to the CO₂ Act proposed by the government in 2017 should have provided for an appropriate climate ambition, but was rejected by Swiss voters in a referendum held in June 2021. Second, the Court found that although Switzerland adopted an amended climate law in 2022, with climate ambitions for the period up to 2050, the law lacked concrete measures. Finally, the Court noted that Switzerland has not adopted a national cap on CO₂ emissions, despite the fact that organisations such as the Intergovernmental Panel on Climate Change have stressed its great importance. The Court acknowledged that specific choices of climate policy measures and methods fall within the wide margin of appreciation of the State, but nevertheless concluded that Switzerland had failed to fulfil its obligations under Article 8 ECHR because of the absence of any domestic measure attempting to quantify the respondent State’s remaining carbon budget. By 16 votes to 1, the Court found that the Swiss authorities had violated Article 8 ECHR. Judge Eicke disagreed with the judgment on this point and wrote a dissenting opinion, more on which below in section 5.  

Carême v. France - inadmissible

The case of Carême v. France (application number 7189/21) concerns a complaint filed by Mr. Damien Carême, former resident and mayor of the French municipality of Grande-Synthe. This municipality is located on the coast and the applicant fears flooding as a result of rising sea levels (due to climate change).

The applicant, together with the City Council, brought his case all the way up to the Conseil d'État. The case concerned, among other things, the French Government's implicit rejection decisions regarding the taking of all necessary measures to reduce greenhouse gas emissions produced in France. Mr. Carême requested the Conseil d'État to annul these decisions and to order the government to take the necessary legislative initiatives to tackle climate change. The Conseil d'État ruled that the refusal to submit a legislative proposal falls outside the jurisdiction of the administrative courts, but that the request to set aside the implicit rejection decision was amenable to judicial review. The Conseil d'État stated that the area has been assessed as being at a very high level of exposure to climate risk in 2030 to 2040 and that these concrete consequences will inevitably have a considerable effect on the area in the absence of effective measures. As climate change will have a direct and certain impact on the situation of the Municipality of Grande-Synthe and preventing or mitigating this impact falls within the interests for which the Municipal Council is responsible, the Municipal Council has standing, according to the Conseil d'État. This does not apply to Mr. Carême, since his argument that his current residence is located within an area which is likely to be flooded in 2040 is brought only in his capacity as a citizen. Therefore, his interest appeared to be affected in a way which is too uncertain. Mr. Carême then lodged a complaint with the Court, claiming that France had taken insufficient steps to prevent climate change and that this failure entailed a violation of his right to life and his right to respect for his private and family life and his home. He motivated this alleged violation, in particular, by referring to the risk of flooding to which the municipality would be exposed in the 2030-2040 period due to climate change. He based this claim on Articles 2 and 8 ECHR. 

Admissibility 

The Court declared the application inadmissible on the ground that Mr. Carême cannot claim to have victim status within the meaning of Article 34 ECHR. The Court considered, first, that there was no reason to question the hypothetical nature of the risk relating to climate change affecting the applicant, as stated by the Conseil d’État. Second, the Court concluded that Mr. Carême no longer owns any property in Grande-Synthe and, moreover, no longer lives in France, which effectively means that he no longer has relevant links with the municipality. The Court therefore decided that Mr. Carême did not have victim status. 

Duarte Agostinho and others v. Portugal and 32 others - inadmissible 

In the case of Duarte Agostinho and Others v. Portugal and 32 Others (application number 39371/20), the applicants put forward that the respondents (33 States) had not taken sufficient action on climate change. The six applicants are Portuguese nationals, aged between 10 and 23. They argue that the existing and future impacts of climate change are attributable to the respondent States and that, in particular, the effects of heatwaves, wildfires and smoke from wildfires affect their lives, well-being and mental health, as well as the amenities of their homes. In addition, the applicants argue that global warming primarily affects their generation and that, in view of their age, the interference with their rights is greater than it is for older generations. 

The applicants argue that Portugal has territorial jurisdiction and the other respondent States have extraterritorial jurisdiction. The applicants further argue that no adequate domestic remedy was reasonably available to them, and that this exempts them from the obligation under Article 35 ECHR to exhaust domestic remedies in each State. 

Admissibility

The Court noted that the applicants are residents of Portugal and thereby fall under its territorial jurisdiction. Regarding the other respondent States, the Court found that extraterritorial jurisdiction could not be established. The Court recognised that (i) the respondent States had ultimate control over the activities on their territory that produce greenhouse gas emissions, that (ii) there is a causal relationship between those greenhouse gas emissions and the impact on the rights and well-being of people living outside the borders of that State, and that (iii) the problem of climate change is of an existential nature for humankind. The Court however concluded that these considerations could not in themselves serve as a basis for a new ground for extraterritorial jurisdiction. In this case, the Court found that there was no specific connection between the applicants and the respondent States (other than Portugal), that citizenship of the European Union is insufficient for assuming extraterritorial jurisdiction, that the ECHR is not designed to provide general protection of the environment as such. It further found that the control of the respondent States over the applicants’ ECHR interests with regard to climate change cannot serve to extend the scope of extraterritorial jurisdiction, as this would entail an unlimited extension of this jurisdiction. The Court therefore declared the applicants’ complaint against the other respondent States inadmissible.

The complaint against Portugal was declared inadmissible for non-exhaustion of domestic remedies. The Court noted that in Portugal, the right to a healthy and ecologically balanced environment is explicitly recognised in the constitution, that this right is directly applicable and enforceable by the domestic courts, and that the Portuguese legal system provides for an actio popularis. Furthermore, the Portuguese legal system provides for mechanisms to overcome parties’ lack of means for legal representation as well as effective remedies against the excessively long proceedings. In view of these circumstances, the Court concluded that no special reasons existed to exempt the applicants from the requirement to exhaust domestic remedies. 

Finally, the Court noted that there is a significant lack of clarity with regard to the applicants’ individual circumstances, which makes it difficult to examine whether they satisfy the victim status criteria.

5. A first interpretation of the ECHR's ruling

With this ruling, the Court is clearly lending national courts a helping hand when it comes to urging governments to combat climate change. More importantly, the Court is urging States to do so on their own. At the same time, the Court’s ruling may be critiqued – certainly from a legal perspective. For example, the Court sets a very high threshold for individual citizens to individually complain about the effects of climate change. The Court's reasoning seems to imply that individuals have a right to complain about the effects of climate change only in cases of serious medical conditions or life threatening situations. 

At the same time, the Court does not raise such thresholds for environmental associations complaining about the effects of climate change. According to the Court, such associations do not have to verify whether their members are actually seriously affected by climate change. This exceptional position granted to environmental associations is extraordinary, especially since such associations are not normally allowed to lodge complaints in Strasbourg on behalf of their members or in the public interest. In this sense, the dissenting opinion of Judge Eicke points out that the Court has hereby de facto allowed an actio popularis, whereas it is settled case law of the Court that such actions are inadmissible. This dissenting opinion also briefly States that the effective measures required by the Court from States to combat climate change go too far and have no basis in Article 8 ECHR. 

It is clear that the Court has tried to strike a balance between on the one hand, emphasising the human rights dimension of combating climate change and on the other hand, preventing citizens at large from knocking on the Court's door to put the climate issue on the agenda. This balancing act is quite understandable, but will undoubtedly attract legal criticism: both from politicians and legal experts, among others, who believe that combating climate change is not an ECHR issue at all, as well as from those who believe that the Court should have given individuals broader access to legal protection in Strasbourg.