It is not only young people who are committed to the climate. More than 2,000 Swiss women in the organization Klimaseniorinnen, with an average age of 73, demanded that the Swiss government reduce the country’s emissions of greenhouse gases in line with the climate goal of the Paris Agreement . In support of their case, they referred to the European Convention on the Protection of Human Rights. But they had no success, either with the government or the national courts. Then they turned to the European Court of Justice. At the beginning of April, the verdict came in the case Klimaseniorinnen against Switzerland.
The impact of climate change on human rights is nothing new. The connection has been discussed for more than 20 years and received increasing international confirmation. The principle starting point was formulated even earlier – even before climate change seriously ended up on the agenda. The declaration from the UN environmental conference in Stockholm in 1972 announces that: “Man has the fundamental right to freedom, equality and adequate living conditions i an environment, which is such that it allows a life of dignity and well-being.â€
In the judgment of the European Court of Justice, the principle becomes hard law. Over 30 years, the Court has developed a solid practice on states’ obligations to actively act so that activities harmful to the environment and health do not restrict human rights. In contrast, it has never before spoken about the states’ obligation to prevent climate change in order to protect human rights. Instead, states’ international obligations to prevent climate change are stated primarily in the UN Framework Convention on Climate Change from 1992. The framework convention is the basis for the specific regulations in The Kyoto Protocol from 1997 and the Paris Agreement from 2015. The framework convention is also the platform for the global climate negotiations and climate policy at the annual conferences of the parties (†COP†, Conference of the parties; latest COP 28 in Dubai).
But the UN framework convention on climate change does not say a word about human rights. It was only at the climate summit in Cancún 2010 (COP 16) that the Conference of Parties carefully “noted†the negative effects of climate change on the enjoyment of human rights. In the Paris Agreement, human rights are mentioned extremely discreetly. On the other hand, the parties undertake ambitious efforts to limit the increase in the global average temperature to 2°C – preferably 1.5°C – above pre-industrial levels . The bottom line is that climate research, despite the ambitious goals of the Paris Agreement and despite recurring events at the annual conference of the parties, shows that the transition is going too slowly. In many countries, development is going in the wrong direction.
That’s why there is Klimaseniorinnen. Frustrated with the slowness of governments, associations, interest organizations and individuals around the world have turned to national courts and sued states for their lack of climate responsibility. In several cases with success. In the Netherlands and Belgium, among others, courts with the support of the European Convention have held the states responsible for not doing enough to reduce greenhouse gas emissions. Now it was time for the European Court to clarify what the convention requires.
The European Court gives Klimaseniorinnen right. The verdict is not surprising, but nevertheless a welcome confirmation of each state’s climate responsibility, fully in line with the European Court’s previous practice and the international legal development on climate responsibility. Climate change, the court states, affects the older women’s ability to enjoy the right to protection for private and family life. Our basic human rights cannot be protected unless our living environment or the climate allows a dignified life in well-being. Switzerland objected during the process that its emissions are so limited that the country cannot be held responsible for climate change on its own. We have heard that argument before, also in Swedish debate. Wisely, the court rules this: “A respondent state should not evade its responsibility by pointing to the responsibility of other states†.
Each state must instead do its reasonable part to reduce emissions of greenhouse gases and their harmful effects. Switzerland is in breach of the European Convention for not having an effective regulatory framework in place that prescribes quantified reductions in the country’s greenhouse gas emissions. In addition, Switzerland falls because Klimaseniorinnen could not have her case tried in a national court. But should a court – national or international – really assess the state’s climate responsibility? Don’t the lawsuits mean that the Klimaseniorinnen and others are just rounding off the democratic process and that the court is creating the climate policy? The answer to the first question is yes, and to the second question no.
We must distinguish between the state’s political and legal responsibility. Governments and political parties make political statements, make political decisions and adopt various political goals regarding climate measures and other things. This responsibility can shift quickly and we see how some politicians back down from previous political commitments. But the politicians cannot free the state from its legal climate responsibility through short-term and populist actions; a responsibility that the state itself laid the foundation for through national legislation, the constitution, EU legislation and international regulations such as the European Convention and the Paris Agreement. In a rule of law, it must be possible to test the state’s legal responsibility in court.
The European Court of Justice explains in the judgment that it is not a legislator, but assesses whether the state has stayed within the framework allowed by the convention to ensure the protection of human rights. The Court does not write in detail what the national legislation should look like. But, the court states, effective protection of private and family life requires that each state – take steps to achieve a substantial and progressive reduction in their emission levels of greenhouse gases , with the aim of reaching net neutrality within, in principle, three decades.†In order not to push the burdens on future generations, this must happen immediately with milestones leading to net neutrality and with legally binding regulation, which ensures the phasing out. Each state has a lot of freedom to choose the method of climate change, but less freedom to thumb the timetable to reach the goal of net neutrality.
But then again, isn’t this politics? No. The verdict is well founded and well balanced. The European Court builds on its previous practice in environmental cases and interprets the European Convention in the light of the states’ legal declarations in the UN Framework Convention and the 1.5-2° target in the Paris Agreement, COP decisions and research reports from the UN climate panel, IPCC. It is also clear from the judgment that Klimaseniorinnen had the right to have the state’s climate responsibility tested in a national court. It follows from the European Convention and also from the Aarhus Convention, an international set of regulations on, among other things, access to judicial review in environmental matters, which Sweden, the EU and most European states are bound by.
The verdict has significance for Sweden.
Shortly after the European Court’s judgment, the Supreme Court decided to try whether a lawsuit of the kind brought by the Aurora group against the Swedish state – can and should be allowed in Swedish law. The conditions in the cases are not identical (the Aurora case is being pursued as a so-called class action), but the European Court’s judgment still hints at the direction of the Swedish process. The Supreme Court can certainly assess whether the criteria for the right to speak are met, but it must state that it is possible to prove the state’s legal responsibility for Climate action in court. To categorically reject that possibility would be against both the European Convention and the Aarhus Convention.
Both the Climate Policy Council and the Swedish Environmental Protection Agency have criticized the government for missing the set climate targets.
The European Court’s judgment in Klimatseniorinnen against Switzerland also shows that Sweden is the danger zone for violating the European Convention. It is not enough to have a climate act and set climate targets if there is no concrete plan or concrete decisions on how the targets are to be achieved. Both the Climate Policy Council and the Swedish Environmental Protection Agency have criticized the government for missing the set climate targets. This and the government’s generally lukewarm attitude to the climate goals – just remember the finance minister’s light-hearted statement, that if we don’t meet the climate goals, “we won’t do it” – go run counter to the court’s interpretation of the European Convention.
Finally, the judgment shows how dynamic and complex climate law is. It takes place on several levels and according to different scales at the same time. It is not only applied and developed from the top down, as in the case of the global intergovernmental climate negotiations. It also happens from the bottom up, such as when older women or young people hold the state responsible in court. The European Court’s judgment affects legal developments around the world and also the international discussion about rights and responsibilities in the climate area. It’s not just the flapping of butterflies’ wings that can cause hurricanes on the other side of the world. It can also increase older women’s commitment and energy.
Jonas Ebbesson is professor of environmental law at Stockholm University.
Read more Full pages in DN Kultur:
Adam Wickberg: The jury is still out on the question of the Anthropocene
Håkan Thörn: The environmental disaster is happening right now, and we have to move on
