Ruling confirming right to protection from climate change is historic - Douglas Blyth

In a historic decision, Verein KlimaSeniorinnen Schweiz and Others v Switzerland (“Verein”), the European Court of Human Rights ruled that Switzerland's response to climate change has violated the European Convention on Human Rights (ECHR).

Concerned about the adverse effects of global warming on their health, Verein KlimaSeniorinnen Schweiz (an association of individuals described as “older women”) and four other individuals challenged Swiss authorities for not taking sufficient action to mitigate the effects of climate change.

Campaign groups and individuals are increasingly turning to the Courts for assistance with addressing climate-related issues, often expressing frustration and dissatisfaction with government decisions or inactivity.

In the UK, challenges against government decisions are often focused upon allegations of a failure to properly observe UK obligations under the Paris Agreement or to properly devise policies consistent with the obligations arising under the Climate Change Act 2008. Such challenges have, however, struggled to gain significant traction, particularly in the absence of the Paris Agreement having direct effect in the UK.

​Members of Verein KlimaSeniorinnen Schweiz react after the European Court of Human Rights found that Switzerland was not doing enough to tackle climate change, in the first such ruling on the responsibility of states to curb global warming  (Picture: Frederick Florin/AFP via Getty Images)

Such issues have latterly prompted challengers to place more emphasis on human rights arguments. But the high bar required to demonstrate the necessary “victim” status has made such challenges similarly difficult.

The decision in Verein KlimaSeniorinnen, however, has the potential to significantly change matters.

In Verein KlimaSeniorinnen, the Court established a direct link between the ECHR and climate change by confirming that Article 8 (the right to respect for private and family life) encompasses a right to effective protection by state authorities from the serious adverse effects of climate change on citizens’ lives, health, well-being, and quality of life.

The Court ruled that contracting states have a positive duty to adopt and apply regulations and measures capable of mitigating the existing and potentially irreversible effects of climate change. Notably, this includes observing international commitments (including, importantly, the Paris Agreement), and implementing measures to reduce greenhouse gas emissions.

​Douglas Blyth is a Partner, Addleshaw Goddard

Whilst the four individual applicants did not meet the victim status criteria, the Court held that the association did. The Court was of the view that the special feature of climate change as a common concern of humankind and the need to promote intergenerational burden-sharing rendered it appropriate to make allowance for recourse to legal action by associations. The association's right to act on behalf of its members in this respect was not dependent upon the individual members qualifying as victims.

This landmark ruling, binding on contracting states (including the UK) has the potential to open the floodgates for human rights claims against authorities on climate change grounds. It also sends a clear message to contracting state governments regarding the importance of implementation of international commitments to combat climate change. Whilst national authorities enjoy wide discretion regarding the means chosen to meet such obligations, it is clear states must take action in a timely, efficient manner to avoid human rights violations.

This case is the first example of an actionable right to enforce a state’s obligation to provide effective protection against climate change-related harm. The scope and extent of this obligation remains broad but it is likely this judgment will result in the introduction of more regulatory measures addressing climate change mitigation. The ECHR indicated that states should be aiming for net neutrality “within, in principle, the next three decades”.

Where states do react accordingly, this will undoubtedly have a significant impact on the private sector active within such states. It remains to be seen what implications this decision will have, for instance, for the UK’s energy industries in particular.

Douglas Blyth is a Partner, Addleshaw Goddard