For more than 30 years governments have been wrestling with the climate problem. While we may or may not get the politicians we deserve, what seems abundantly clear is that no mainstream political party has demonstrated the sufficient gumption to keep humanity safe from dangerous climate change. Last year shattered records for global temperature (it was the warmest year for at least 100,000 years), and highest ever carbon-dioxide emissions (more than 37.4 billion tons). This year, temperatures and emissions are likely to be even higher.
In the light of this bleak realpolitik, climate activists are increasingly turning to the courts. Legal systems are underpinned by the central principle of protecting people from harm. Climate change threatens harming vast swathes of humanity and so should be a legal matter.
In 2015, 21 young Americans filed a climate lawsuit against the US government, essentially arguing that by failing to limit fossil-fuel extraction and greenhouse-gas emissions, the US government was failing to protect their human right to a safe future. The Juliana v United Stateslawsuit continues to rumble on through various US courts. Similar cases have been attempted in the UK and Europe.
This week saw a stunning judgement from the European Court of Human Rights (ECHR)which determined that climate change exists, member states are aware of it, and are capable of taking measures to decrease further warming and so risks. Crucially, the court found that member states have an obligation to reduce greenhouse-gas emissions, and that the Swiss government had failed to do that.
This is a truly landmark ruling because it would apply to all member states given that none of them are doing what’s required to limit warming to 1.5°C. This has opened up an entirely new front to fight for climate justice.
The ECHR made rulings on three related cases that had been filed from a French MEP, a group of young people from Portugal, and an association of Swiss women over 64 – KlimaSeniorinnen Schweiz. It was this Swiss group that produced the breakthrough as it was their case that lead the court to conclude that the Swiss government were in breach of Article 8 of the European Convention of Human Rights. At this point we need to briefly review some of the history of these institutions in order to understand just how pivotal this legal decision is.
Established in 1959, the European Court of Human Rights interprets the European Convention of Human Rights which was created by the Council of Europe. It’s important to understand that the Council of Europe is separate to, and predates, the European Union. Winston Churchill first publicly touted the idea of a European council during the Second World War. In 1949, as UK prime minister, Clement Atlee was one of the original signatories to the Council, and championed the creation of a convention on human rights.
The UK has left the EU, but is still a member of the Council of Europe and so must take into account rulings by the ECHR – as must all other member states. Another important aspect of this week’s ruling is that the ECHR found Swiss courts were wrong to throw out KlimaSeniorinnen Schweiz’s original legal case. That was in violation of Article 6, because it was denying the group the right of access to their domestic courts. That means national courts must now hear these sorts of cases.
So while the ECHR made specific rulings about failures of the Swiss government, citizens from all 46 member states can now submit legal challenges to their national governments citing this important precedent.
Governments will resist them. One common tactic is to argue that climate change is a global challenge and so no single state should be identified as being at fault. But the ECHR rejected this argument and stated that “each state has its own share of responsibilities” and so cannot “evade its responsibility by pointing to the responsibility of other states.”
If you are on a sinking boat then you have a responsibility to help bail out the water. You don’t get to sit back and argue you aren’t going to help because someone else isn’t.
One of the ramifications of all this for the UK is that it will probably increase calls from some to ditch the European Convention of Human Rights. That would require leaving the Council of Europe, and so the UK would join Russia and Belarus as the only European states who are not members. If that were to happen, then the nation deserves to be judged by the company it keeps.
