Climate change and human rights: a new chapter for States, NGOs, and businesses?

On 9 April 2024, the European Court of Human Rights (ECtHR) issued its first substantive decision on human rights aspects of climate change in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. The ECtHR recognised a right to effective protection by State authorities from adverse effects of climate change on lives, health, wellbeing and quality of life, as derived from the European Convention on Human Rights (ECHR). Some domestic courts, such as those in the Netherlands and Belgium, have previously addressed this subject matter by ordering the respective States to cut their greenhouse gas (GHG) emissions. The ECtHR’s views on climate change-related obligations may sharpen the teeth of climate change litigation against States for years to come. The judgment will undoubtedly have important implications for States, individuals and NGOs involved in other domestic or international proceedings. It may also have (indirect) implications for businesses.

The KlimaSeniorinnen case was brought by an association of elderly women and four of its members, who alleged that Switzerland’s failure to adequately mitigate and adapt to climate change violated their rights under the ECHR.

In its seminal decision, the ECtHR made, among others, four key findings with significant implications for future disputes. The ECtHR found that:

• there is cogent scientific evidence that climate change has already contributed to an increase in morbidity and mortality of individuals and that these impacts may become irreversible and disastrous if States do not take immediate decisive action
• the causes of climate change – which come from multiple sources, involve complex and unpredictable chains of events, know no national boundaries and must be addressed globally – are such that they require the ECtHR to develop approaches specifically tailored to climate change issues
• Switzerland had failed to take the necessary measures to reduce its GHG emissions, thereby breaching the right to private and family life under the ECHR
• the failure of Swiss authorities to seriously engage with the KlimaSeniorinnen’s action was in breach of their right of access to court.

In a wealth of novel issues raised by the ECtHR’s judgment, the following are particularly noteworthy.

Strengthened role of NGOs

NGOs are already at the forefront of climate change and human rights litigation. The ECtHR’s judgment may increase their confidence to pursue rights under the ECHR even further.

In the KlimaSeniorinnen case, the ECtHR upheld a high threshold for standing of individuals bringing applications concerning a State’s failure to combat climate change. An individual applicant must demonstrate: (i) high intensity of exposure to the adverse effects of climate change; and (ii) a pressing need to ensure the applicant’s individual protection. The four individual applicants in the KlimaSeniorinnen case failed to meet these criteria. However, the ECtHR was more lenient when it came to an NGO bringing the complaint. It found that specific considerations relating to climate change required that NGOs have standing as representatives of potentially affected individuals. As long as an NGO: (i) is lawfully established or has standing in the jurisdiction concerned; (ii) is dedicated to pursuing the protection of human rights; and (iii) is sufficiently representative of its members who are subject to specific threats of climate change, such standing will likely be granted. Crucially, an NGO can bring allegations of ECHR violations before the ECtHR without having to demonstrate that either itself or its members were victims of such violations.

Given the difficulties in establishing victim status for individuals in climate change cases, NGOs now appear to be the primary candidates to bring such cases before the ECtHR. In theory, the ECtHR reiterated that there is no actio popularis under the ECHR. In practice, the ECtHR’s decision grants NGOs a tool that is akin to such a popular action. Thus, the ECtHR’s judgment will likely result in increased NGO activity before domestic and international courts.

States are bound under human rights law to combat climate change

The ECtHR found that the right to private and family life encompasses a duty to adopt and implement measures to mitigate the negative effects of climate change. States are granted a margin of appreciation for devising and/or implementing the relevant measures, which the ECtHR can only review as to whether the State stayed within this margin. By applying these principles, the ECtHR found that States must substantially and progressively reduce their GHG emission levels, with a view to achieving carbon neutrality in the next three decades. States must not only adopt measures to achieve these goals, but also diligently monitor their progress in achieving them. 

The ECtHR’s findings add a new dimension to human rights law. Obligations contained in other environmental treaties – such as the United Nations Framework Convention on Climate Change, the Paris Agreement, and the Aarhus Convention – now have a footing directly in the ECHR. If individuals and especially NGOs consider that a State is not meeting its GHG reduction obligations or is not providing sufficient information on its efforts, they now have a recognised procedural option to bring applications against States before the ECtHR. 

The judgment directly addresses and affects only the obligations of States to put in place the relevant legislative and administrative framework to combat climate change. It has no direct effect on businesses’ behaviour, as the latter are not bound by the ECHR. However, it may have indirect effects on businesses if it leads to governments adopting stricter emission targets for the private sector. 

For more than a decade, international standards such as the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises have encouraged businesses to comply with human rights. To what extent such instruments create legal obligations for businesses is the subject of a number of proceedings before national courts. The District Court of The Hague has derived an obligation for Shell to reduce emissions from, among other things, these human rights instruments. An appeal by Shell is currently pending (see here). German appellate courts, however, have rejected such an obligation (see here). Importantly, the upcoming EU Corporate Sustainability Due Diligence Directive and existing national supply chain legislation such as the German Supply Chain Act or the French Duty of Vigilance Act require businesses to comply with due diligence obligations in relation to human rights (and certain environmental standards). Thus, soft law standards are increasingly turning into hard law, enforceable before domestic courts.

Takeaways

Although the ECtHR ruling is only binding on the Swiss government and not strictly binding on national courts, it will in practice have a significant impact on climate change-related disputes. The ECtHR’s decision solidified the role of international human rights law at the forefront of climate change litigation and likely provides new wind in the sails of NGOs involved with related litigation against States on the basis of human rights arguments. The ECtHR’s decision shows an increased trend in interpreting human rights in the light of other (environmental) obligations under international law, which is likely to continue in the future. The judgment only concerns human rights obligations of States under international law. However, businesses should be mindful of the content of the GHG reduction obligations espoused by the ECtHR and should follow further developments closely. There may be a trickle-down effect through the imposition of stricter emission targets into domestic laws, in particular where States have not yet set a timeline for achieving carbon neutrality. 

Climate change litigation continues to develop rapidly. Before the ECtHR alone, six additional proceedings related to climate change are pending, providing the court with an opportunity for further clarification. Moreover, there are landmark proceedings ongoing both domestically and internationally, with advisory opinions expected from the International Court of Justice, the International Tribunal for the Law of the Sea and the Inter-American Court of Human Rights.