UK Law Soc Gazette: Strasbourg throws out two climate change cases – but finds Swiss authorities at fault

claim brought against more than 30 European states by Portuguese young people who claim their human rights are infringed by climate change policies is inadmissible, the Grand Chamber of the European Court of Human Rights ruled unanimously today. However the court found partially in favour of a separate claim brought against Switzerland.

In Duarte Agostinho and Others v Portugal and 32 Others, judges found that six climants, aged between 11 and 24, had not used all the legal avenues available to them in their home country and had not exhausted domestic remedies. No jurisdiction could be established for the other states in the case.

The young people argued that the states, including the UK, were failing to comply with their positive obligations under Article 2 (right to life) and Article 8 (right to respect for private and family life) of the European Convention on Human Rights. They also raised issues under Article 3 (prohibition of ill-treatment) of the convention and a violation of Article 14 (prohibition of discrimination).

The judgment rejected the argument that the claimants could not take action at home. Portuguese domestic law ‘provides for a non-contractual civil liability action against the state by which compensation could be obtained for harm or damages caused by unlawful action or inaction by the state,’ they ruled. ‘The Portuguese legal system also provides for administrative remedies whereby administrative courts could be asked to compel the administration to adopt measures regarding, inter alia, the environment and quality of life.’

While no case specifically concerning climate change has so far been decided, ‘environmental litigation is now a reality of the domestic legal system’, the judges ruled.

Judgments in two other climate change cases were also handed down.

One, brought by a former French mayor, was also dismissed. The court found the former resident and mayor of Grande-Synthe did not have victim status nor a sufficiently relevant link with the commune, in Calais, France.

In the Swiss case, four women and a Swiss association Verein KlimaSeniorinnen Schweiz claimed Swiss authorities were not taking sufficient action, despite their duties under the ECHR, to mitigate the effects of climate change. Though the individual complaints were inadmissible, the court found a violation of Article 8 and that Switzerland had failed to comply with its positive obligations under the convention concerning climate change.

Swiss authorities had not acted in time or in an appropriate way to develop and implement relevant legislation and measures to mitigate the effects of climate change, the judges ruled. They also found violation of Article 6 (access to justice) as the association’s legal action had been rejected on ‘inadequate and insufficient considerations’ both by the administrative authority and then by the national courts at two levels of jurisdiction.

Professor Aoife Nolan, professor of human rights law at the University of Nottingham, described the decision in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland as ‘a huge step forward in terms of ensuring European human rights law protection in relation to the environment. The court made clear that climate change has implications for, and may violate, the European Convention on Human Rights.’

Meanwhile the impact on European human rights law of the unsuccessful Portuguese youth claim ‘should not be underestimated’, she said. ‘The litigation and the advocacy surrounding it has fundamentally changed European climate justice discourse and the landscape of climate justice efforts.’