I first wrote Climate Litigation almost three years ago. In comments below the article I have drawn attention from time to time to the ongoing and increasing number of Court cases around the world seeking to hold companies and/or states responsible in some way for climate change, or for not doing enough about climate change. Recently the comments by me and by others have, not surprisingly, related to the recent decision of the European Court of Human Rights (ECHR) that has been wildly celebrated by the BBC and the Guardian among others. The judgment in the case in question (VEREIN KLIMASENIORINNEN SCHWEIZ AND OTHERS v. SWITZERLAND) can be found by those who are determined to read it, via the ECHR website, a press release (which has to be downloaded as a PDF document) and finally here.

The judgment is enormous, running to 657 paragraphs. In addition, a further 70 paragraphs are taken up by the partly concurring, partly dissenting, opinion of Judge Eicke. I will take a (necessarily fairly brief) look at the contents of some of those 727 paragraphs, but first, some comments at Cliscep that illustrate the folly of the majority judgment:

Robin Guenier: “Switzerland is the source of 0.08% of global emissions.”

JitL “Nothing the Swiss government can do to affect their local climate at all.”

Jaime Jessop: “…this appears to set the precedent that if national governments are not ‘doing their bit to tackle climate change’, even if ‘doing their bit’ makes no meaningful difference whatsoever to climate change because that country’s emissions are swamped by other countries’ contributions, then the citizens of that country can take their government to court for a breach of their human rights incurred due to suffering extreme weather…”.

Me: “On what legal basis can a Court interfere to order a national Government to take measures that will make no positive measurable difference to the lives and health of its residents?”

Robin Guenier linked to an article by Francis Menton, whose conclusion is: “In other words, “democracy” means that a handful of unelected judges make the rules for everyone else, in accordance with elite sensibilities and religious cults. Could there be a better word for this than “Orwellian”?”

Robin linked to another article, this time by Judith Curry, in which she states: “There will be a continuing need for fossil fuels. Rapid restrictions to fossil fuels before cleaner energy is available interferes with more highly ranked sustainability goals – no poverty, no hunger, affordable and clean energy, and industry-innovation-infrastructure. There is no human right to a safe or stable climate. Apart from the lack of an international agreement, such a “right” contains too many contradictions to be meaningful.”

I followed up with another excellent quote from that last article:

The arguments supporting the putative right to a safe climate are significantly weakened once the adverse effects of the policies to bring about a safe climate on food production are understood. In addition, climate and energy policies have significant environmental impacts and cause environmental degradation. For instance, forest biomass-based fuel causes deforestation, and on-shore and off-shore wind turbines and solar parks may (and, in fact, do) harm the social fabric, real estate prices, nature, biodiversity, the scenery, and human health. The mining and manufacturing required for batteries, and other renewable energy-related goods and infrastructure cause adverse environmental and human health impacts, and renewable energy also causes CO2 emissions. Given that European Human Rights Court has taken the position that the right to life also protects against environmental degradation and health risks, these adverse environmental and health impacts associated with any policies to respond to the Court’s judgment would have to be taken into account.

Jaime Jessop again: “Causation cannot be proved beyond any reasonable doubt.”

All are excellent points in my opinion. However, the knock-down argument to my mind, which means that the Court should have dismissed the case immediately, without seeking to stretch the law (and effectively make law), is due to the basis on which the Swiss ladies (technically a not-for-profit campaigning organisation which brought the proceedings on their behalf) framed their case (paragraphs 10 and 11 of the judgment):

The first applicant – Verein KlimaSeniorinnen Schweiz – is a non-profit association established under Swiss law (“the applicant association”). According to its Statute, the applicant association was established to promote and implement effective climate protection on behalf of its members. The members of the association are women living in Switzerland, the majority of whom are over the age of 70. The applicant association is committed to reducing greenhouse gas (“GHG”) emissions in Switzerland and their effects on global warming. The activity of the applicant association is stated to be in the interests of not only its members, but also of the general public and future generations, through effective climate protection. The applicant association pursues its purpose in particular through the provision of information, including educational activities, and by taking legal action in the interests of its members with regard to the effects of climate change. The applicant association has more than 2,000 members whose average age is 73. Close to 650 members are 75 or older.

For the purposes of the proceedings before the Grand Chamber, the applicant association solicited submissions by its members about the effects of climate change on them. The members described how their health and daily routines were affected by heatwaves.

In essence, the claim was to the effect that the lives and health of the elderly are being harmed by heatwaves. Heatwaves are caused by (or, at least, are becoming more extreme because of) climate change. Climate change is in substantial part caused by humankind’s ongoing release of greenhouse gases. Therefore the Swiss Government (being the government of the state where the ladies live) should take active measures to reduce greenhouse gas emissions.

As pointed out in the comments I have mentioned above, there are lots of issues here. Causation is highly problematic in general scientific terms. In addition, the Swiss nation’s contribution to global greenhouse gas emissions is so small as to make no measurable difference to the climate, therefore nothing the Swiss government does can make any difference to the lives and health of the ladies who brought the case. There is no right to protection from the climate (the Court in essence simply made one up).

But most of all, there is more to climate than just heat and heatwaves. There is also extreme cold. And many, many more people die of extreme cold than die of extreme heat – around the world, in Europe, and in Switzerland. For the foreseeable future gentle global warming will have the effect of reducing the number of deaths from extreme temperatures. Declaring that something should be done to reverse that trend (however futile and Canute-like such an order may be) is actually an order to take steps to increase the number of deaths from extreme temperatures. And on any basis (human rights-related or otherwise) that simply cannot be right. Needless to say, I can find no indication to suggest that the Court listened to any evidence regarding the harmful effects of extreme cold on the lives of elderly (or any other) Swiss residents, nor can I find any suggestion that they even considered the matter. The Court’s decision is one made in the darkness of great ignorance of the facts, despite the numerous paragraphs devoted to the IPCC and evidence of climate change. See paragraph 510, where the Court purports to justify interveneing to reduce heat-related deaths:

…the IPCC has found (with medium confidence) that anthropogenic climate change, particularly through increased frequency and severity of extreme events, increases heat-related human mortality. Other scientific studies have also found that heatwaves have caused tens of thousands of premature deaths in Europe since 2000. In this context, the IPCC has also found (with high confidence) that populations at “highest risk” of temperature-related morbidity and mortality include older adults, children, women, those with chronic diseases, and people taking certain medications…

Not a mention of deaths from extreme cold.

The other substantial problem, of course, is that the Court has also invented a new law which cannot actually be found in the European Convention of Human Rights. An activist Court of unelected (and unaccountable) Judges has simply made the law up to suit an activist agenda. And activism was very much in evidence in the case. Among the third party interveners who were allowed to have their say were the following:

United Nations High Commissioner for Human Rights.

United Nations Special Rapporteurs on toxics and human rights; on human rights and the environment; and the Independent Expert on the enjoyment of all human rights by older persons.

International Commission of Jurists (ICJ) and the ICJ Swiss Section (ICJ-CH).

European Network of National Human Rights Institutions (ENNHRI).

International Network for Economic, Social and Cultural Rights (ESCR Net).

The Human Rights Centre of Ghent University.

Professors Evelyne Schmid and Véronique Boillet (University of Lausanne).

Professors Sonia I. Seneviratne and Andreas Fischlin (Swiss Federal Institute of Technology Zurich).

Global Justice Clinic, Climate Litigation Accelerator and Professor C. Voigt (University of Oslo).

ClientEarth.

Our Children’s Trust, Oxfam France and Oxfam International and its affiliates (Oxfam).

Group of academics from the University of Bern (Professors Claus Beisbart, Thomas Frölicher, Martin Grosjean, Karin Ingold, Fortunat Joos, Jörg Künzli, C. Christoph Raible, Thomas Stocker, Ralph Winkler and Judith Wyttenbach, and Doctors Ana M. Vicedo Cabrera and Charlotte Blattner).

Center for International Environmental Law and Dr Margaretha Wewerinke Singh.

The Sabin Center for Climate Change Law at Columbia Law School, and:

Germanwatch, Greenpeace Germany and Scientists for Future.

It was certainly the view of Judge Eicke that the other sixteen Judges had made the law up and in doing so have gone too far. Here he sets the scene in the four opening paragraphs of his separate judgment:

To my regret, I am unable to agree with the majority either in relation to the methodology they have adopted or on the conclusions which they have come to both in relation to the admissibility (and, in particular, the question of “victim” status) as well as on the merits. In so far as I have voted for a violation of Article 6, the right of access to court, as I will explain in a little more detail below, my conclusion was reached on the basis of a very different (and, arguably, a more orthodox) approach to the Convention and the case-law thereunder.

Despite a careful and detailed engagement with the arguments advanced both by the parties and interveners in this case…as well as by my colleagues in the course of the deliberations, I find myself in a position where my disagreement goes well beyond a mere difference in the assessment of the evidence or a minor difference as to the law. The disagreement is of a more fundamental nature and, at least in part, goes to the very heart of the role of the Court within the Convention system and, more generally, the role of a court in the context of the unique and unprecedented challenges posed to humanity (including in but also across our societies) by anthropogenic climate change.

It is, of course, perfectly understood and accepted that, under Article 32 of the Convention, the Court’s jurisdiction extends to “all matters concerning the interpretation and application of the Convention” (Article 32 § 1) and that “[i]n the event of dispute as to whether the Court has jurisdiction, the Court shall decide” (Article 32 § 2). However, it is equally clear that this ultimate interpretative authority comes with immense responsibility; a responsibility which, in my view, is reflected in the Court’s normally careful, cautious and gradual approach to the evolutive interpretation of the Convention under what is frequently described as the “living instrument” doctrine. Unfortunately, for the reasons set out in a little more detail below, I have come to the conclusion that the majority in this case has gone well beyond what I consider to be, as a matter of international law, the permissible limits of evolutive interpretation.

In doing so, it has, in particular, unnecessarily expanded the concept of “victim” status/standing under Article 34 of the Convention and has created a new right (under Article 8 and, possibly, Article 2) to “effective protection by the State authorities from serious adverse effects on their life, health, well-being and quality of life arising from the harmful effects and risks caused by climate change” (§§ 519 and 544 of the Judgment) and/or imposed a new “primary duty” on Contracting Parties “to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change” (§ 545, emphasis added), covering both emissions emanating from within their territorial jurisdiction as well as “embedded emissions” (i.e. those generated through the import of goods and their consumption); none of which have any basis in Article 8 or any other provision of or Protocol to the Convention.

Interestingly perhaps, Judge Eicke, although German-born, has dual German and British nationality, and is the UK’s judge on the ECHR.

And its not all bad news. For all the hysteria surrounding the case (whether high fives at the BBC and the Guardian, or great anger and demands that the UK leaves the European Convention of Human Rights, by climate sceptics and others), the Court did have the grace to recognise its own limitations, and to pay lip service to the ongoing roles enjoyed by such concepts as democracy and national sovereignty. Her are the final two paragraphs of the main judgment – a good point on which to end, I think:

The Court further points out that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions and spirit of the Court’s judgment. However, in certain special circumstances the Court has found it useful to indicate to a respondent State the type of measure – individual and/or general – that might be taken to put an end to the situation which has given rise to the finding of a violation (ibid., § 294).

In the present case, having regard to the complexity and the nature of the issues involved, the Court is unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment. Given the differentiated margin of appreciation accorded to the State in this area (see paragraph 543 above), the Court considers that the respondent State, with the assistance of the Committee of Ministers, is better placed than the Court to assess the specific measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State, the adoption of measures aimed at ensuring that the domestic authorities comply with Convention requirements, as clarified in the present judgment.