What has climate change got to do with the ECHR?

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The European Court of Human Rights (ECHR) has delivered a landmark judgement, effectively ruling that governments have a duty to protect people from climate change.

In Verein KlimaSeniorinnen Schweiz and Others v Switzerland – a case brought against the Swiss state by a group of elderly Swiss women – the ECHR has ruled that the Swiss government failed to implement ‘sufficient measures’ to combat climate change. According to the court’s judgement, there have been ‘critical gaps in the process of putting in place the relevant domestic regulatory framework, including a failure by the Swiss authorities to quantify, through a carbon budget or otherwise, national greenhouse gas (GHG) emissions limitations’. The ECHR has decided that Switzerland’s supposedly inadequate attempts to tackle climate change violate Article 8 of the European Convention on Human Rights, which guarantees the ‘right to respect for private and family life’.

This is a hugely significant judgement given that it will affect all 46 countries signed up to the ECHR, including the UK. The ECHR found that four individual applicants also seeking to challenge Switzerland over climate change did not have ‘victim status’. This means they did not have the legal status to bring a case to the ECHR. However, it agreed that Senior Women for Climate Protection Switzerland (KlimaSeniorinnen Schweiz), a group that represents over 2,000 women, did meet the specific ‘victim status’ criteria. This allowed the group, rather than the individuals, to bring the litigation forward. So this ruling does not mean that anyone can now launch a human-rights challenge against his or her government over climate change. But it does arguably open the door for NGOs and other campaign groups to do so.

This is a deeply troubling ruling. Tory MP Robert Jenrick, a long-time critic of the ECHR, has described it as ‘profoundly undemocratic’. He’s not wrong. The ruling allows the ECHR, at the behest of activist groups, to further intervene in a nation’s internal affairs. It allows the ECHR to ‘resolve’ what ought to be political questions. Indeed, it means that a democratically elected government could now be hauled before the court if its policies do not accord with the green agenda. No wonder Greta Thunberg joined a gathering of climate activists outside the court to celebrate the ruling.

The ECHR did acknowledge in its judgement that questions relating to climate-change mitigation were ‘policy’ issues. It even said that states would retain a wide ‘margin of appreciation’ as to how they tackle climate change. Nevertheless, the court has clearly empowered itself to decide when a state’s policies overstep this ‘margin of appreciation’ and fall within its jurisdiction.

Not all of the ECHR’s judges are happy with this ruling. Tim Eicke KC, the UK’s judge in the court, delivered a blistering dissenting statement. He said that the court had, in effect, created a brand new right – a right to be protected from the harmful effects of climate change. This is a significant trespass of the court into the political domain and sets a dangerous precedent, Eicke said.

This case has demonstrated once again why the European Court of Human Rights poses such a threat to democracy. The court is forever expanding its authority over national legislatures, and diminishing the power of national electorates in the process.

These judges are unelected. We have no power over them and no way to call them to account. For that reason alone, we need to kick them out of politics. The question of how to respond to climate change must be resolved democratically, through public, political arguments. Not through legal arguments in the increasingly activist chambers of Strasbourg.

Luke Gittos is a spiked columnist and author. His most recent book is Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, which is published by Zero Books. Order it here.