On 9 April 2024, the European Court of Human Rights (ECtHR) handed down three rulings on significant climate cases. It ruled two of the three inadmissible but found in favour of one, setting an important precedent that binds all European Courts and is expected to have a global impact on climate litigation.
In KlimaSeniorinnen Schweiz and Others v Switzerland, the Court ruled in favour of more than 2,000 Swiss women who brought a case against the Swiss government, first of its kind to be before the ECtHR. The group of elderly women argued that their government put them at risk of dying during heatwaves that were caused by climate inaction, and that the risk to their health was exacerbated by their age and gender. The verdict, which cannot be appealed, was delivered by a 17-judge panel in Strasbourg.
The Swiss group of Senior Women for Climate Protection, known as KlimaSeniorinnen, sued the Swiss Government for alleged "woefully inadequate" efforts to fight climate change. The Court ruled in their favour, agreeing that their government violated human rights laws by failing to comply with its own targets for reducing greenhouse gas emissions and failing to put in place sufficient policies to tackle climate change. Critical gaps in domestic policy include, the Court said, "a failure ... to quantify, through a carbon budget or otherwise, national greenhouse gas emissions limitations". The Court found that the Swiss Government violated article 8 of the European Convention on Human Rights (ECHR), the right to respect for private and family life. The Court found that article 8 "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".
Other climate decisions by the ECtHR
Two other climate cases brought before the ECtHR were ruled as inadmissible on the same day. In Duarte Agostinho and Others v Portugal and 32 Other States, a group of six Portuguese youth argued that all countries party to the ECHR had violated human rights as heatwaves and fires have presented risks to their health and prevented their education. The group filed the lawsuit against all parties to the Convention, not just Portugal. The Court ruled that while a state's greenhouse gas emissions can affect people beyond its borders, this does not warrant litigating the case across multiple jurisdictions.
In Carême v. France, the former mayor of French suburb Grande-Synthe argued that the French Government is in violation of human rights by failing to take sufficient steps to prevent climate change and therefore heightening the risk of future flooding in the area. The Court decided that the case was inadmissible since Carême does not currently live in France, meaning he does not fall within the "victim status".
In the UK, a homeowner who lost his house to coastal erosion, has commenced litigation against the UK Government claiming that the Government’s failure to protect Mr Jordan from the sea is a breach of section 6 of the Human Rights Act, which covers “unlawful” policies by a public authority that damage people’s rights. According to Friends of the Earth, the Government’s national adaptation programme (NAP3) which sets out measures to protect people from climate change such as extreme heat, flooding and coastal erosion is not fit for purpose and claim it breaches the Climate Change Act, which sets legally binding targets to reduce CO2 emissions.
Other international developments on human rights and climate change
In April 2023, the United Nations General Assembly asked the International Court of Justice (ICJ) to give an advisory opinion on States' obligations under international law, including international human rights law, regarding the protection of the climate system. The Court has also been asked to advise on the legal consequences flowing from a failure to fulfil such obligations, with respect to States and people, and in particular small island States and future generations which are particularly vulnerable to the adverse effects of climate change. The request is being led by Vanuatu and is supported by 105 other States, including Australia. The ICJ is likely to commence public hearings in the second half of 2024, with an opinion given in the first half of 2025. Although the Court's decision will not be legally binding, it will likely influence the Australian Government's approach to assisting its small island neighbours adapt to climate change. The Australian Government is already considering various initiatives to financially assist the Indo-Pacific through its proposed sustainable finance strategy and sovereign green bond framework.
What does this mean for the Australian context?
Although the KlimaSeniorinnen decision is only binding on countries party to the ECHR, it is expected to resonate globally, with its impacts likely to affect Australian decision-making particularly in the context of the developing policy, legislative and judicial requirements on Australian governments to consider human rights when making decisions. For example:
- Australia has in recent years been subject to increasing amounts of climate litigation, with a significant decision by the UN Human Rights Committee (UNHRC) in 2022 finding that Australia's failure to adequately protect Torres Strait Islanders from climate change violated rights under the International Convention on Civil and Political Rights (ICCPR) to enjoy their minority culture and be free from arbitrary interference with their private life, family and home. Despite being a party to the ICCPR, Australia has not incorporated it into domestic law, meaning this judgment is non-binding. However, the decision is politically and judicially significant particularly for QLD, VIC and the ACT as those states have enacted human rights legislation.
- While New South Wales has no human rights legislation, it recently took a significant step by enshrining the right to a healthy environment in the Climate Change (Net Zero Future) Act 2023. One of the guiding principles of this Act places responsibility on the NSW Government to urgently develop and implement strategies, policies, and programs to combat climate change. The Act stipulates that actions to address climate change should align with the right to a clean, healthy, and sustainable environment.
- The ACT is also moving in this direction, as evidenced by the introduction of the Human Rights (Healthy Environment) Amendment Bill 2023 which aims to incorporate the right to a clean, healthy, and sustainable environment into its Human Rights Act 2004. The Bill recently underwent legislative inquiry which has recommended the Bill be enacted, with the government response to the inquiry due on 25 May 2024. The inclusion of the right to a healthy environment in State legislation indicates a growing trend in Australia towards considering human rights impacts in government decision-making.
- Similar provisions enacted in the Queensland Human Rights Act 2019 (Qld) formed part of a successful objection to a mining lease in the matter of Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21 (Waratah). It was held in this matter that a mine in the Galilee Basin would create adverse climate outcomes in its emissions and hinder Australia's ability to meet emission reduction commitments. Importantly, the Court found that the connection between authorising the mining lease and the environmental harm caused by the greenhouse gas emissions was sufficient to establish that the proposed project would limit several human rights. The decision in Waratah demonstrates that both government decision-makers and private entities need to be aware of the increasing levels of responsibility for actions that adversely impact the environment due to the link with human rights laws.
- A recent case in the New Zealand Supreme Court is similarly examining the boundaries of corporate climate change responsibility in the context of alleged infringement of public rights. In Smith v Fonterra Co-Operative Group Limited [2024] NZSC 5, the Supreme Court reinstated a statement of claim brought by a Maori elder seeking to test the torts of public nuisance, negligence, and a proposed climate system damage against seven companies in the agriculture and fossil fuel industries. The case remains ongoing and is currently identified as being the first of its kind in the world to test tort law in connection with climate change which will likely be influential in the development of similar arguments in Australia.