Wielenga, Lorenz

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A Court, Not a PolicymakerLorenz Wielenga 2023-03-31T17:00:54On Wednesday, under the eyes of great public interest, the Grand Chamber ofthe European Court of Human Rights (ECtHR) opened a chapter to what maybecome the ECtHR’s greatest challenge in the 21st century. The hearings inKlimaseniorinnen v. Switzerland and Carême v. France are the first in the historyof the ECtHR to negotiate the impact of climate change on European human rightslaw. As of the two hearings, three major issues seem to have crystallised: causation,victim status, and the general compatibility of the Convention with the complex,multi-faceted phenomenon of global warming. After a brief summary of the twocases, this blog post reflects on these challenges, offering some modest suggestionsfor addressing them.Klimaseniorinnen v. SwitzerlandAccording to the applicants – all women above the age of 75 – global warming hasa particularly harmful effect on them as elderly women. Swiss climate mitigationtargets and implementation measures allegedly failed to effectively counter therisks heat waves present to them. Previously, domestic remedies had remainedunsuccessful: In May 2020, the Swiss Federal Supreme Court rejected the appeal,ruling that the Klimaseniorinnen were not affected in an individual and direct wayand referring the plaintiffs to political rather than legal means. Subsequently, theKlimaseniorinnen filed an application to the ECtHR, claiming several violations of theConvention [art. 2, art. 6 (1), art. 8, art. 13 in conjunction with art. 2 and art. 8].Carême v. FranceIn 2019, the municipality of the French town Grande-Synthe and its mayor, actingas both mayor and private person, called on the State Council (Conseil d’État) toforce the government to implement additional measures to comply with the ParisAgreement target of reducing emissions by 40 % by 2030. While the applicationas mayor was successful, it was declared inadmissible by the State Council withregard to Carême as a private person by the State Council, since he had no personalinterest in the proceedings. The applicant sees this rejection and the alleged inactionto take appropriate steps against the rise of greenhouse gases produced on Frenchterritory as a violation of his rights under the Convention (art. 2, art. 8). He expectshis home to be subject to flooding by 2040. As came to light during the hearing, theapplicant currently lives in Brussels, but may return to Grande-Synthe in the future.This development constitutes a major challenge to the prospects of the case.The Problem of CausationThe impact of climate change on human rights is obvious. However, not everyobstruction to enjoying a certain right constitutes a violation of this right. Applicantsmust demonstrate a causal link between state behaviour and a suffered injury. In- 1 -climate cases, an extremely complex network of numerous global emitters unfolds,making the burden of proof even more challenging than in general environmentallaw matters. According to the Swiss government, Switzerland’s historic contributionto global emissions is 0.2 per cent, making it challenging to prove a health riskdirectly caused by Swiss greenhouse gases. Yet, the applicants relied on principlesof shared responsibilities, rooted in international law, such as the “Guiding Principlesof Shared Responsibilities” (see here for an analysis of the Guiding Principles withseveral referalls to climate change). In addition, one could consider “shifting theburden of uncertainty from plaintiffs to state defendants”. This, however, would notliberate the ECtHR from a highly complex scientific evaluation.Victim Status: Actio Popularis and the “Temporal Gap”Moreover, both cases provide fertile ground for discussion on the issue of victimstatus. In Klimaseniorinnen, hundreds of elderly women have united in a legal body– an association – which serves as applicant in their case. Several articles of theConvention, however, including art. 2 (right to life), do not apply to associations,causing doubts concerning the admissibility of the case. Switzerland as thedefendant state regards the application as an actio popularis, incompatible withthe Court’s case law and general mission to offer legal remedies to individualcomplaints.In Carême, art. 34 is disputed for different grounds. While the causes of climatechange as a scientific phenomenon lie in past and present carbon emissions, itseffects will mainly materialise in the future. This temporal dimension of climatelitigation constitutes a second major challenge, seeing as art. 34 of the Convention(victim status) does not allow complaints in abstracto. Hence, the less the potentialharm has occurred in the present and the further its destructive potential mayunfold in the future, the more difficulties the ECtHR will have to identify the violationof Convention rights. In general, the ECtHR’s case law on future environmentaldamage may serve as a first guideline (see e.g., here, here, and here). However, asthese cases only deal with environmental harm within a discernible geographic area,they have limited instructive value in light of the systemic reasons and ubiquitouseffects of climate change. The temporal dimensions will be particularly challengingin Carême v. France since the flooding of the applicant’s home would need to beproven a foreseeable reality in the immediate future.In view of the broad evidence outlining the climate crisis, the gravity of theinfringement to be feared, and in accordance with the general human rights principlein dubio pro libertate et dignitate (Wewerinke-Singh, p. 138), there are good reasonsto bridge the temporal gap. As the Convention was intended to guarantee practicaland effective rights, the ECtHR may adapt its standards for “immediacy”. The factthat the Court invoked the effectivity formula in some of its most innovative decisions(Nussberger, p. 76) may raise hopes among the applicants. The Klimaseniorinnen,on the other hand, refer to heat waves in present summers that are likely to intensifyyear by year. In this case, the temporal dimension of art. 34 of the Conventiontherefore seems less of a hurdle to take.Climate Change as a Legal or Political Problem?- 2 -In all of the above, the factor of state approval of the ECtHR must alwaysaccompany doctrinal elaborations. Beyond the mere application of the Convention,the ECtHR considers how potential backlash to ambitious interpretation mayundermine its legitimacy and thereby the effectiveness of European human rightsprotection. This is even more true in morally sensitive, scientifically complex, andpolitically polarised topics. It hence does not surprise that the Court has granteda wide margin of appreciation in environmental law, especially to the legislator.Considering the highly intense political debate on how to tackle climate changeand the large number of sectors affected by climate policy, going hand in hand withthe requirement to politically prioritise resources, the Court will most likely accept abroad variety of domestic mitigation approaches.Indeed, no mitigation policy can be decreed by a court decision, it should remaina political and democratic exercise. Notwithstanding, climate science stresses therapidly closing window of opportunity to somehow stop or decelerate irreversibledamage to the planet and all its inhabitants. It is mere happenstance that thehearings coincide with the recent Intergovernmental Panel on Climate Change(IPCC) “synthesis report”. Again, it is a grim read. Over the last years, state reactionsto the well-known urgency ranged between remarkable but insufficient mitigation andadaptation efforts and downright paralysis. As the former UN High Commissioner forHuman Rights Michelle Bachelet once put it: “The world has never seen a threat ofthis scope to human rights. This is not a situation where any country, any institution,any policymaker can stand on the sidelines.” Against the backdrop of this call, itappears to be obvious that especially the ECtHR as Europe’s highest authority onthe interpretation of human rights law cannot stay silent.Indeed, combating climate change with judicial means may become a fruitful strategyto nudge inert democratic majorities toward more ambitious climate policies. On thispath, it will be crucial for the ECtHR’s acceptance to stick to its nature as a court.The legal challenges in the cases outlined above must be taken seriously – for thesake of both the Court and mankind. In sum, turning to courts in a desperate searchfor more ambitious climate policies is all too understandable. Nevertheless, stickingto its role as an adjudicative body may prove to be vital for the ECtHR’s future.- 3 -

A Court, Not a Policymaker

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A Court, Not a Policymaker

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