European court’s climate ruling prompts political backlash

The political battle against climate change has, so far, largely been driven by legislation and regulation by national governments. However, a key European Court of Human Rights ruling this month set a new and potentially important legal precedent in the 46 member states of the Council of Europe.

Some eight years ago, the Senior Women for Climate Protection, a group of 2,000 Swiss women over the age of 64, began legal action against their government for failing to take stronger action against climate change. On April 9, the European Court of Human Rights in Strasbourg (which is unrelated to the EU) surprised the Swiss government by upholding the Greenpeace-backed lawsuit, ruling that its insufficient measures against global warming infringes the human rights of the female senior citizens involved in the case.

A sign of the importance of the case is that it was heard by the 17 judges of the so-called Grand Chamber. This is the court’s most prestigious chamber. It ruled 16-1 in favor of the Senior Women for Climate Protection.

Swiss President Viola Amherd expressed surprise at the decision. She asserted that sustainability, biodiversity and net zero are key goals for Switzerland. However, Swiss politicians overall are divided on the ruling. The Swiss People’s Party and the Centre are critical of it, while the Swiss Socialist Party and the Green Party support the decision.

The ruling increases pressure on the governments of Council of Europe states to step up their action

Andrew Hammond

The ruling could have major significance, partly because it is the first time that a supranational court has ruled on climate change, finding a direct link with quality of life, health and well-being. Specifically, the judges ruled that the demographic group of older females is particularly vulnerable to climate-induced heat waves.

The court found that the Swiss state had violated Article 8 of the European Convention on Human Rights, which enshrines the “right to respect for private and family life.” The right of groups of people to enjoy a “healthy environment” is a long-standing element of Article 8 case law.

The ruling increases pressure on the governments of Council of Europe states to step up their action. This includes not only the 27 members of the EU, but also nations such as Armenia, Azerbaijan, Georgia, Switzerland, Turkiye, Ukraine and the UK.

To be sure, some nongovernmental organizations and activists have had domestic legal successes, both inside and outside Council of Europe member states. For instance, a judge in the US state of Montana ruled last year that state agencies are infringing a constitutional right to a clean environment by allowing fossil fuel development.

However, the European court’s ruling is the first time an international court has upheld a climate case. So, it could now influence the law in a cross-section of the diverse members of the Council of Europe.

The decision will probably also encourage other bodies to bring similar cases to the European Court of Human Rights. Indeed, some such litigation had already been suspended prior to the ruling on this case.

There is also more scope for domestic legal challenges in Council of Europe member nations, plus the possibility that the ruling may mean that the European Convention on Human Rights needs to be formally amended to include the right to a clean, healthy and sustainable environment. There are also ramifications for cases of a comparable nature in wider jurisdictions, including the Inter-American Court of Human Rights in Costa Rica, with cases pending that relate to the human rights impacts of climate change.

Sunak is facing growing calls from some in his Conservative Party to pull the UK out of the convention

Andrew Hammond

While the decision may be a boon to NGOs and activist groups, there has already been a political backlash in some member states. One common criticism is a perception that the judges are acting as de facto legislators. UK government lawyer Sudhanshu Swaroop asserted that the court was seeking “to legislate for a global challenge without having global jurisdiction.”

The context to this statement is the significant growth in domestic laws and regulations that address global warming, which are being passed at an increasing rate, especially since the 2015 Paris Agreement. In a recent report by the Grantham Research Institute at the London School of Economics, it was revealed there are more than 800 climate change laws and policies now in place across the world, up from 54 in 1997.

This context framed UK Foreign Secretary David Cameron’s response to the ruling. He said: “I think it’s dangerous when these courts overreach themselves, because ultimately we’re going to solve climate change through political will, through legislation in this House of Lords and the House of Commons, by the actions we take as politicians, by the arguments we put to the electorate — and so I do think there’s a danger of overreach.”

It is of little surprise, therefore, that Prime Minister Rishi Sunak is facing growing calls from some in his Conservative Party to pull the nation out of the convention. This is not only because of the climate ruling, but also because of potential legal obstacles to his plan to send asylum seekers to Rwanda.

The huge political challenge for Sunak is that doing so would have implications for the Good Friday Agreement, which underpins the Northern Ireland peace process. It would also put the UK in a very small and undistinguished club of European countries that are not in the Council of Europe, alongside Russia and Belarus.

This European Court of Human Rights ruling could therefore prove to be very significant in the years to come. However, the more that climate action shifts toward the legal arena, the greater the potential for political backlash — and not just from Conservatives in the UK.

• Andrew Hammond is an Associate at LSE IDEAS at the London School of Economics.