In depth: Landmark ECtHR climate claims fail but activists hail 'fundamental change'

Two of three landmark climate change claims heard by the Grand Chamber of the European Court of Human Rights were found to be inadmissible this week. But a partial victory in a case brought against Switzerland has been hailed a ‘massive win for all generations’.

In Duarte Agostinho and Others v Portugal and 32 Others, the court found that six claimants, aged between 11 and 24, had not used all 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 (ECHR). 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’, the court ruled. It added: ‘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.’

The judges also noted that ‘environmental litigation is now a reality of the domestic legal system’.

The second case to be dismissed was brought by a French former mayor. 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.

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

Swiss authorities had not acted in time or appropriately 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), because 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’.

She added that the impact of the unsuccessful Portugal claim upon European human rights law ‘should not be underestimated’.

‘The litigation and the advocacy surrounding it has fundamentally changed European climate justice discourse and the landscape of climate justice efforts,’ she said.

Vesselina Newman, fundamental rights lead at activist environmental lawyers ClientEarth, described the Swiss case as ‘not just a win for these inspirational claimants, but a huge victory for those everywhere seeking to use the power of the law to hold their government accountable for climate inaction.

‘This is also a European first for climate litigation,’ added Newman. ‘As this court ruling is binding, signatory states now have a clear legal duty to ensure their climate action is sufficient to protect human rights. Judges across Europe will have to apply these new principles to the growing number of climate cases before them.’

Gerry Liston, senior lawyer at Global Legal Action Network, which supported the Portugal case, said the Swiss ruling ‘sets a historic precedent’.

He added: ‘It means all European countries must urgently revise their targets so that they are science-based and aligned to 1.5°C. This is a massive win for all generations.’

Corina Heri, postdoctoral researcher at the University of Zurich said: ‘While Duarte Agostinho may have been declared inadmissible, the argumentative model created by this case will certainly have an enduring legacy in the court’s further case law on climate change.’

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