Richard Ekins KC (Hon) is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford
In its new climate change judgment, Verein KlimaSeniorinnen Schweiz and Others v Switzerland, the European Court of Human Rights has outdone itself, inventing new obligations on member states in relation to climate change and proclaiming a new power to superintend environmental policy across Europe.
The Strasbourg Court’s ruling cannot possibly be reconciled with the terms of the European Convention on Human Rights (ECHR). But then, the Court seems to have precious little concern for the legal grounding of its case law.
This is a landmark judgment if ever there was one. It will rightly reignite the British debate about the merits of ECHR membership.
KlimaSeniorinnen is not the first case in which Strasbourg has shown itself willing to invent new obligations out of whole cloth and to impose them on member states under the guise of upholding the terms of the ECHR. In a series of cases since the late 1970s, the Court said that the Convention is a “living instrument” – a notion that the Court has since deployed to create new rights and to upend the settled meaning of existing rights.
Most notably, as Policy Exchange showed in Immigration, Strasbourg, and Judicial Overreach, with support from Lord Hoffmann, the Strasbourg Court has invented out of whole cloth a new European law of immigration and asylum. The Court’s assertion that it has a legal power to grant binding interim relief, under Rule 39 of the Rules of Court, is another (related) abuse, which clearly has no foundation in the ECHR itself (see further my study for Policy Exchange, Rule 39 and the Rule of Law).
What is striking about this new judgment is the boldness with which the Court has intervened in relation to the complex and controversial question of how states should respond to climate change.
The Court now asserts that its jurisdiction stretches into general environmental policy, which embraces social and economic policy, not to mention geopolitics. Yet the question of how any particular state should act in light of climate change cannot be isolated from a host of other complex and controversial questions; indeed, it is a paradigm of a polycentric political question which courts are neither entitled nor well-placed to answer.
Some human rights lawyers will say that the Strasbourg Court is not itself taking responsibility for micro-managing each state’s response to climate change. Instead, the Court is only insisting that states must act, without specifying exactly how they should act. The defence fails.
It is true that the Court hopes to avoid, for now, evaluating the technical detail of any state’s environmental policy or mandating that particular industries must be closed down, or regulated in some specific way.
But the Court has now said that the way in which the state responds to climate change engages Article 8 (the right to respect for private life and family life) – and probably Article 2 (the right to life) as well – which means that the Strasbourg Court itself, and domestic courts too, will be able to question the state’s decision-making in almost every field, precisely because one cannot easily disentangle the social, economic, political, and scientific problems that are in play.
The whole point of this judgment is to deploy human rights law to compel states to address climate change. Inviting further litigation, in each state and before the Strasbourg Court itself, is part of the strategy, with governments and parliaments – or even a whole people voting in a referendum, as in Switzerland – being checked by courts who will second-guess their decisions, including about relative priorities and the optimal pace of change.
The KlimaSeniorinnen judgment is certain to launch a new wave of climate change litigation in which some of the most important questions about how we live will be settled not openly by public deliberation and democratic decision but rather by political litigation and judicial fiat.
The Strasbourg Court’s judgment was not unanimous. Judge (Tim) Eicke, the British judge on the Court, dissented, objecting to the majority’s judgment in very strong terms.
Unlike Sir Gerald Fitzmaurice, the British judge to serve on the Court from 1974-1980, Judge Eicke is not generally opposed to the “living instrument” idea. But the Court’s reasoning in this case clearly appals him. He reluctantly concludes “that the majority in this case has gone well beyond what I consider to be, as a matter of international law, the permissible limits of evolutive interpretation.” The majority, he argues:
“has created a new right (under Article 8 and, possibly, Article 2) to “effective protection by the State authorities from serious adverse effects on their life, health, well‑being and quality of life arising from the harmful effects and risks caused by climate change” (§§ 519 and 544 of the Judgment) and/or imposed a new “primary duty” on Contracting Parties “to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change” … none of which have any basis in Article 8 or any other provision of or Protocol to the Convention.”
Judge Eicke reminds his colleagues that the Court’s duty is to interpret the ECHR itself and not to remake it in order to enforce other international commitments. Quoting another judgment, he says that the Court should not read the ECHR in such a way as to conjure up “a right that was not included therein at the outset”, especially “where the omission was deliberate”.
And, in fact, the member states had repeatedly decided not to create a right to a clean and healthy environment. (The same is true in relation to the Court’s supposed power to grant binding interim relief under Rule 39: the member states deliberately, and repeatedly, decide not to confer such a power.)
Much of Judge Eicke’s dissent concerns the majority’s treatment of what might seem like a narrow procedural question, namely whether the applicants had standing under Article 34 even to be heard by the Court.
Article 34 expressly limits the Strasbourg Court’s jurisdiction to “applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation”. However, the majority in KlimaSeniorinnen effectively sets aside the “victim” requirement where climate change cases are concerned.
The risk about which the applicants complain is future risk, which the Strasbourg Court was not set up to anticipate or address. The applicants could not show that they were directly affected by the Swiss government’s actions, which should have meant that their application was inadmissible. The majority shrugs this off, authorising associations to apply to the Court even if none of their members are victims in terms of Article 34.
In subverting this express limit on its jurisdiction, the Court has invited public interest litigation from pressure groups who cannot show that any actual person’s rights have been breached.
These problems spill over into the substance of the matter. The majority abandons the concern, which one finds in earlier Article 2 case law, to establish that the activity about which the applicant objects puts his or her life at “real and imminent risk”.
The Swiss government’s actions in relation to climate change are obviously far too remote to meet this test. (Indeed, in view of the relative size of the population and economy of Switzerland, nothing that the Swiss government might do in relation to climate change could conceivably put any person in real or imminent risk of death.)
Likewise, while the Strasbourg Court had held in earlier cases (controversially) that environmental pollution, including noise, could interfere with Article 8, those cases had required the pollution to be limited to a particular vicinity and not to be “environmental hazards inherent to life in every modern city”.
In any case, and more fundamentally, it is obvious that a failure to take adequate measures to avert climate change, assuming such is established, does not constitute a failure to respect the private life or family life of any person, which is what Article 8 protects.
Strikingly, the Strasbourg Court, having imposed a new (invented) obligation on member states to combat climate change and to set relevant aims and objectives to this end, goes on to say that it will not allow member states much leeway in relation to this obligation. It is only in relation to the choice of means to this end where the Court will be more tolerant.
But the Court will supervise this obligation, and domestic courts will do the same, “by reference to a detailed catalogue of criteria”, which includes the need to update targets regularly and on the basis of evidence, a task which Judge Eicke rightly says “the Court is ill-equipped and ill-suited to perform.” The majority should have heeded his warning that even on its own logic, the ruling will be counter-productive, distracting governments from taking adequate action and distorting sensible policy-making.
What happens next? Most obviously, unless Parliament amends the Human Rights Act 1998, our courts will follow the Strasbourg Court’s new reading of Convention rights and thus will have to handle a new wave of climate change litigation.
However, the more fundamental question must be whether the UK should remain party to a Convention in which the Court acts in such a lawless fashion to assert an intolerable new power to oversee key questions of public policy.
Like Judge Eicke, I doubt that the KlimaSeniorinnen judgment will help states better address climate change – but it certainly helps seal the case for states to withdraw from the ECHR.
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Author: Richard Ekins
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