The judges in Strasbourg are just making up new human rights

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BrusselsReport.eu
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The European Court of Human Rights in Strasbourg (Copyright: By CherryX - Own work, CC BY-SA 3.0, https://en.wikipedia.org/w/index.php?curid=38007603 )

By Em. Prof. Dr. Marc Bossuyt (University of Antwerp), the former President of the Belgian Constitutional Court and former Belgian Commissioner General for Refugees. In 2023, he published the book “Right of asylum: between demagoguery and hypocrisy“. As Belgium’s leading asylum expert, he has taken a critical stance towards the jurisprudence of the European Court of Human Rights in asylum cases for years.

On 9 April 2024, in the Verein Klimaseniorinnen Schweiz case, the European Court of Human Rights in Strasbourg ruled that Switzerland violates the right to respect of everyone for his private and family life enshrined in Article 8 of the European Convention on Human Rights (ECHR).  Uninitiated people will no doubt be surprised to learn that the Court has succeeded in interpreting that article in such a way that the climate policy of States Parties to the ECHR can violate it.

As a matter of fact, the Court created with this ruling a new “right for individuals to effective protection by the State authorities from serious adverse effects on their life, health, well-being and quality of life arising from the harmful effects and risks caused by climate change”.  That right which according to the Court is included in Article 8 of the ECHR, imposes on the States Parties a new “primary duty to adopt and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change”.

British Judge Tim Eicke

The Court has apparently not been able to resist the green wind blowing in well-thought European circles.  One judge, the Brit Tim Eicke, didn’t go along with that.  It is worth mentioning his arguments.  He does not dispute the need to take immediate and effective steps to avoid any further increase in damage and danger created by climate change.  He plainly recognizes “the nature or magnitude of the risks and the challenges posed by anthropogenic made climate change and the urgent need to address them”.  However, he fundamentally disagrees with the role the Court believes it can play in this time in identifying and taking the steps necessary to ensure the survival of the planet.

Positive obligations

In the classical approach, the right to private and family life requires governments to refrain from arbitrary interference.  Despite the negative wording of most of the rights guaranteed by the ECHR, the Court has nevertheless attributed positive obligations to those rights.  Objections to such an interpretation were dismissed. However, positive obligations undermine the universality of these human rights since the scope of such obligations necessarily depends on the resources available.  Moreover, the Court has also reserved itself the right to decide for itself the extent of these positive obligations.

Evolutive interpretation

The Court based its interpretation on its earlier rulings which consider the ECHR to be a “living instrument which must be interpreted in the light of present-day conditions” (1978) and which “is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (1979).  According to Judge Eicke, the Court normally adopts a “careful, cautious and gradual approach to the evolutive interpretation”.  However, he felt that the majority of the Court “in this case has gone well beyond what [he] considers to be, as a matter of international law, the permissible limits of evolutive interpretation”.

Extreme caution and prudence required

Judge Eicke considers that the Court should act “with extreme caution and prudence”, inter alia, because climate change is a threat to global security requiring global cooperation and mutual trust.  Especially since 1) the Convention is not specifically designed to provide general protection of the environment as such;  2) proposals of the Parliamentary Assembly of the Council of Europe to provide the Court with an express competence in relation to a clean and healthy environment were not approved by the Contracting Parties;  3) the Paris Agreement is based on the principle of common but differentiated responsibilities, which is difficult to be reconciled with the Court’s primary role of ensuring observance of a common minimum standard;  4) the Court has no authority to ensure respect for international treaties or obligations other than the ECHR;  5) the Court cannot derive from these instruments a right that was not included in the ECHR at the outset;  6) the principle of subsidiarity and of separation of powers make clear that, in relations of social and economic policy requiring the careful weighing of competing rights and interests, this Court (and the courts more generally) may only fulfill a subsidiary role to the democratically legitimated legislature and executive.

False hope

Judge Eicke concludes that the judgment will only give (false) hope that litigation and the courts can provide the answer to the climate crisis.  He is concerned that litigation will distract attention from the ongoing legislative and negotiating efforts being undertaken.  As a result, the Court “may well have achieved exactly the opposite effect of what was intended”.  For lawyers specialized in environmental law, this judgment is very promising.  Whether it will help climate policy remains to be seen.

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