With an April 9, 2024, ruling against Switzerland for its failure to meet climate change targets, the European Court of Human Rights (ECHR) has opened up a vast new market for the human rights law industry: potential climate change lawsuits against 46 member states of the Council of Europe. But by pulling climate-change activism deeper into the abstract and toothless realm of international human rights legislation, the ECHR ruling further removes it from domestic politics, where actual policy change can be effected. Moreover, it further confuses the meaning and efficacy of human rights legislation itself.
The case, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, was brought by a group of women, all over 64 years of age, who claim that their health is threatened by heat waves. Switzerland only reduced its greenhouse gas emissions by 11% between 2013 and 2020, missing its 20% pledge. Swiss authorities argued that climate policies lie outside the scope of international human rights law. But according to an official document, the Court found that under Article 2, protecting the right to life, the European Convention on Human Rights “encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life. … The Court found that the Swiss Confederation had failed to comply with its duties (“positive obligations”) under the Convention concerning climate change.”
Climate change’s putative threat to human rights has long been a prominent topic in international organizations, and is often a vehicle for demands for compensation from groups claiming to be victims of pollution from the developed world. Leading Swiss and other European media commentators praised the European Court ruling for “elevating climate protection to the status of a human right,” thus setting a precedent for other international courts. Not surprisingly, the decision has been applauded by activists as the first affirmation by an international court that “a climate crisis is a human rights crisis,” according to a lawyer for the Center for International Environmental Law.
But we would be well-advised to heed the ruling’s dark side. It vastly expands the scope of positive state obligations imposed by the human rights treaty. Most previous, environmentally-oriented Court rulings concerning the right to life have addressed such issues as a state’s obligation to warn citizens of a potential mudslide. States are obligated to protect citizens from life-threatening crime and accidents in public places. No derogations are admissible under Article 2. If anthropogenic CO2 production is deemed the cause of climate change, the new ruling could well usher in human-rights decisions regulating basically every human activity, including decisions beyond the reach of the law, because they are claimed to be rooted in transcendent, universal moral principles.
The European Convention on Human Rights was established in 1950, with the support of Winston Churchill and other post-war Allied leaders, as a bulwark against totalitarianism—a mandate no less vital today. But in recent decades, judicial activism and cave-ins (mainly to French legal trends) have eroded its credibility. Upholding violations of the freedom of speech in the form of hate speech laws, the Court has also held that governments can ban religious clothing. While failing to protect fundamental liberties, the Court is inflating the definition of human rights, thereby weakening it.
The decision is “legally binding,” but only in the fantasy world of international human rights law. Domestic courts in the Netherlands, Germany, and the United States, whose power is rooted in the will of particular communities, have forced changes in environmental policies. But an editorial in the Swiss Aargauer Zeitung argued that “Switzerland will not change one iota of its climate legislation as a result of the ECHR ruling.” Transforming environmental protection into an international human rights issue may endow it with universalist moral charisma, but kicking the issue upstairs, into a realm of largely symbolic, idealistic action, will mainly benefit polluters in the same way that tyrants enjoy impunity when their crimes move into the international sphere where no laws or political force obtains. Noncompliance with international—or, indeed, any—law erodes the moral principles upon which the law rests.
Judicial activism leads to citizen passivity. The European Convention was meant to protect fundamental political freedoms and democratic processes. Human rights principles define those core freedoms; what citizens do with those freedoms is the realm of positive national legislation. That’s where climate change initiatives belong.
