Analysis: The European Court of Human Rights' landmark finding means Ireland's Supreme Court will need to revisit its own conclusions in future
By Orla Kelleher, Maynooth University and Andrew Jackson UCD
Earlier this week, the Grand Chamber of the European Court of Human Rights delivered its first ever rulings on the application of the European Convention on Human Rights (ECHR) to climate change. Two of the three cases were dismissed on procedural grounds - one taken by a French mayor (now MEP) against France and another taken by six Portuguese young people against 32 European countries.
But the Court ruled in a case taken by four Swiss women and the Verein KlimaSeniorinnen Schweiz (Senior Women for Climate Protection) association that Switzerland’s inadequate climate action was in breach of Article 8 of the ECHR. This concerns the right to respect for private and family life and home and the Court recognised for the first time that this encompasses "a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life".
The applicants in the Swiss case argued that they were at an increased risk due to the health impacts on older women of heatwaves that are becoming more intense and frequent as a result of climate change. They also argued that the inadequate ambition of Switzerland’s climate targets and its insufficient policies and measures to meet these targets breached their rights under the ECHR.
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The Court found that there were "critical gaps" in Switzerland's regulatory framework for addressing climate change, including a failure to quantify Switzerland’s remaining carbon budget and previous failures to meet past emission reduction targets. As such, Switzerland had failed to comply with its obligations under Article 8 in the context of climate change. The Court also found a violation of Article 6 (right to a fair trial) on the basis that the "domestic courts did not engage seriously or at all" with the NGO’s claim.
The ruling is likely to have a significant influence on climate litigation before international and domestic courts, including here in Ireland. This should in turn help to ratchet up climate ambition and leverage more urgent climate action around the world.
In Ireland's first major climate case - Friends of the Irish Environment v Government of Ireland, also known as "Climate Case Ireland", in 2020 - the Supreme Court quashed the first national climate plan on the basis that it lacked sufficient specificity on how Ireland would meet its 2050 target. The Supreme Court’s decision was described as a "turning-point for climate governance in Ireland" and the extraordinary ripple-effect of the judgment has since been seen internationally in favourable climate judgments from Germany’s highest court and from the High Court of England and Wales, both of which relied on the Supreme Court’s reasoning.
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However, a disappointing aspect of the Supreme Court’s judgment was its finding that Friends of the Irish Environment, as a corporate body, did not have standing to litigate personal constitutional/human rights. We have previously criticised this aspect of the Supreme Court’s ruling on the basis that it unduly restricts access to justice in environmental matters and arguably infringes international law.
In contrast and more significantly, the ECHR held in the Swiss case that the NGO applicant, Verein KlimaSeniorinnen Schweiz, did have standing to litigate personal rights under Article 8 of the ECHR. This was even where the four Swiss women involved in the case (who were members of the NGO) did not themselves have standing (or "victim" status) because there was insufficient evidence that they were at risk of such a high intensity of exposure to the adverse effects of climate change that there was a pressing need to ensure their individual protection.
In Climate Case Ireland, the Supreme Court queried why an NGO rather than an individual had sought to litigate personal rights in the case. The Court did not accept as sufficient the explanation that this was because of the fear that an individual could face financial ruin if they lost the case and had to pay the government's legal costs as well as their own.
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In contrast, the European Court of Human Rights emphasised that "there has been an evolution in contemporary society as regards recognition of the importance of [NGOs litigating] issues of climate change on behalf of affected persons". It noted that "climate-change litigation often involves complex issues of law and fact, requiring significant financial and logistical resources and coordination". Put simply, the ECHR appears to have been finely attuned to matters that were dismissed by the Supreme Court in Climate Case Ireland.
With its decision in the Swiss case, the European Court has expanded its existing rules on NGO standing in recognition of the special feature of climate change as a common concern of humankind and the need to promote intergenerational burden-sharing. As the Court put it "in this context where intergenerational burden-sharing assumes particular importance … [NGO standing] may be one of the only means through which the voice of those at a distinct representational disadvantage can be heard and through which they can seek to influence the relevant decision-making processes". Significantly, the Court relied heavily on the Aarhus Convention - an environmental human rights treaty which provides for access to justice and public participation - in support of its findings on standing.
The Court's broadening of NGO standing rules is particularly significant because standing has been a major barrier for climate litigation to date. The European Court’s decision in the Swiss case will likely mean that the Supreme Court of Ireland will need to revisit its conclusion on the question of NGO standing in a future climate case. This would certainly seem to be necessary should an NGO seek to litigate rights under Article 8 of the ECHR, but the Swiss judgment may also influence the Supreme Court’s position on NGO standing to litigate rights under the Constitution, for reasons of consistency. In practical terms, any NGO seeking to litigate Article 8 ECHR in a future climate case will need to ensure it fulfils the conditions set down by the European Court (at paragraph 502).
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Human rights obligations in the context of climate change
The European Court's ruling is also significant in that it details States’ positive obligations in the context of climate change. This sets a vital benchmark against which climate (in)action can be measured, in Ireland and elsewhere. The Court held that States have a "primary duty to adopt, and to effectively apply in practice" climate laws and measures capable of mitigating the existing and potentially irreversible future effects of climate change. The Court emphasised that "effective respect [for rights under Article 8 ECHR] requires [States to] undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades".
In order for this to be genuinely feasible, the Court held, and to avoid a disproportionate burden on future generations, "immediate action needs to be taken and adequate intermediate reduction goals must be set for the period leading to net neutrality". Significantly, the Court held that "[s]uch measures should, in the first place, be incorporated into a binding regulatory framework at the national level, followed by adequate implementation." This should represent a strong catalyst for the adoption and implementation of national framework climate laws across Europe, such as Ireland’s Climate Act, which have long been campaigned for as a key governance tool in the fight against dangerous climate change.
The Court made clear that in assessing the adequacy of a State’s climate measures from a human rights perspective it would consider whether the State had 1) adopted targets for achieving carbon neutrality within a specified timeline and calculated the remaining carbon budget for that period in line with national/global climate mitigation commitments, 2) defined interim targets (e.g., 2030 targets) and emission reduction pathways capable of reaching those targets, 3) provided evidence of compliance with those targets, 4) kept targets updated in line with the best available science and, 5) acted in good time and in an appropriate and consistent manner when developing climate laws and measures.
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Measured against this yardstick there appear to be "critical gaps" in Ireland’s climate governance regime. On ambition, Ireland’s 2030 and 2050 targets do not amount to a "fair share" contribution to help limit heating to 1.5℃, which is the goal of the Paris Agreement. In terms of implementation, Ireland is expected to exceed its first two carbon budgets by a "significant margin," and up until now the government has failed to provide clear emissions projections, scenarios and pathways in its national and EU climate plans for how it can meet its targets and close the implementation gap. It is certainly strongly arguable that our climate laws and policies are not being "effectively applied" in practice.
As noted above, the European Court of Human Rights made it very clear in the Swiss judgment that "immediate action needs to be taken" to "avoid a disproportionate burden on future generations". If countries including Ireland fail to rapidly scale up their climate action, they can expect to be taken to court by citizens and NGOs, whose hand has now been significantly strengthened by this ruling.
Dr Orla Kelleher is an assistant professor at Maynooth University School of Law and Criminology. She works with CLM Centre for Environmental Justice on strategic climate litigation. Dr Andrew Jackson is an assistant professor at UCD Sutherland School of Law. He is also a member of Environmental Justice Network Ireland (EJNI). He acted as a solicitor for Friends of the Irish Environment in "Climate Case Ireland" before the High Court and the Supreme Court.
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The views expressed here are those of the author and do not represent or reflect the views of RTÉ
