Analysis. This has established a central role for the courts: they will have to verify that governments are doing enough to protect citizens' fundamental rights in this area as well.

If states won’t act on climate change, the courts could make them

The decision of the European Court of Human Rights in the case of Verein KlimaSeniorinnen Schweiz and others v. Switzerland, which recognized that the Swiss association “Senior Women for Climate” has the right to file a legal complaint regarding threats arising from climate change, is of extraordinary importance. Not least because one must recall that the European Convention on Human Rights (ECHR) does not allow for legal complaints in the abstract against rules of law or administrative practices that do not directly or indirectly, or even potentially, affect the rights of the person bringing the complaint (actio popularis).

In this particular case, the Court held that climate change is a matter of common concern to humanity and that the need to promote intergenerational burden-sharing leads to the conclusion that recourse to collective bodies is the only accessible means for effectively defending individual interests. The Strasbourg Court thus ruled that Switzerland had failed to fulfill its (“positive”) obligations enshrined in Article 8 of the ECHR, which it interpreted as including the right of individuals to effective protection by state authorities from the serious adverse effects of climate change on their lives.

As a result, if inadequate state actions to combat climate change are found to exacerbate the risks of harmful consequences (and the consequent threats to the enjoyment of human rights), a tort of omission arises, which is something far more difficult to ascertain: thus, it is a great success that the Court did so, identifying the causal relationship between state inaction with regard to climate change and harm, or the risk of harm.

This has established a central role for the courts: they will have to verify that governments are doing enough to protect citizens’ fundamental rights in this area as well.

In contrast, the Court rejected the appeal in the case of Carême v. France, in which the former mayor of Grande Synthe accused France of failing to take sufficient measures to avert the risk of the town being flooded by the waters of the North Sea, based on the notion of the petitioner being a victim. The court found that the plaintiff did not have status because he is no longer a resident of that municipality, nor does he have sufficiently relevant ties to the town, since he is not living in France at the moment.

Finally, in the court case brought the Portuguese young people, perhaps the best known of the three cases, not least because of the number of states accused, including Italy, the Court did not go into the merits of the plaintiffs’ claims, finding the legal action inadmissible because the six young people had not made use of the judicial and administrative avenues available in Portugal to file their complaints and thus had not exhausted the possible remedies at the national level. One must recall that the safeguard mechanism established by the Convention has a subsidiary character with respect to the national systems of human rights protection.

Thus, the three verdicts point in a single direction: that of the great relevance of climate lawsuits and the urgency of state action to counteract the worsening of climate effects. This is obviously so in the case against Switzerland, since it received a positive ruling, but also in that of the former mayor of Grande Synthe, because it should be recalled that the French Council of State had upheld the appeal of the small coastal municipality, granting it compensation as well as ordering the state to take further measures to counter climate change. Likewise in the case of the Portuguese young people, because while the ruling said the appeal was, at this point, inadmissible on procedural grounds, it represents only a sort of postponement until after the competent Portuguese judicial authorities have a chance to examine the case and deliver their own ruling.

And this is a victory either way: either the Portuguese authorities will follow the principles of the Strasbourg Court’s ruling condemning Switzerland for inaction, or they will not deem this approach valid, in which case the young plaintiffs will again be able to turn to the European Court of Human Rights, which, as is obvious, will very likely rule against Portugal.

The cascading impact of these rulings, almost a domino effect, emphasizing the crucial role of the courts (national, regional and international) in examining whether governments are doing enough to reduce greenhouse gas emissions and thus safeguard the fundamental rights of their citizens, will be seen in the willingness of the legislators of the 46 Council of Europe member countries, for whom the Strasbourg Court’s rulings set a precedent, to take note and act accordingly and effectively to meet their climate commitments. Their task is to follow the trajectory of reducing climate-changing greenhouse gas emissions as needed to meet the 2030 targets.

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