I first wrote Climate Litigation almost three years ago. In comments below the article I have drawn attention from time to time to the ongoing and increasing number of Court cases around the world seeking to hold companies and/or states responsible in some way for climate change, or for not doing enough about climate change. Recently the comments by me and by others have, not surprisingly, related to the recent decision of the European Court of Human Rights (ECHR) that has been wildly celebrated by the BBC and the Guardian among others. The judgment in the case in question (VEREIN KLIMASENIORINNEN SCHWEIZ AND OTHERS v. SWITZERLAND) can be found by those who are determined to read it, via the ECHR website, a press release (which has to be downloaded as a PDF document) and finally here.
The judgment is enormous, running to 657 paragraphs. In addition, a further 70 paragraphs are taken up by the partly concurring, partly dissenting, opinion of Judge Eicke. I will take a (necessarily fairly brief) look at the contents of some of those 727 paragraphs, but first, some comments at Cliscep that illustrate the folly of the majority judgment:
Robin Guenier: “Switzerland is the source of 0.08% of global emissions.”
JitL “Nothing the Swiss government can do to affect their local climate at all.”
Jaime Jessop: “…this appears to set the precedent that if national governments are not ‘doing their bit to tackle climate change’, even if ‘doing their bit’ makes no meaningful difference whatsoever to climate change because that country’s emissions are swamped by other countries’ contributions, then the citizens of that country can take their government to court for a breach of their human rights incurred due to suffering extreme weather…”.
Me: “On what legal basis can a Court interfere to order a national Government to take measures that will make no positive measurable difference to the lives and health of its residents?”
Robin Guenier linked to an article by Francis Menton, whose conclusion is: “In other words, “democracy” means that a handful of unelected judges make the rules for everyone else, in accordance with elite sensibilities and religious cults. Could there be a better word for this than “Orwellian”?”
Robin linked to another article, this time by Judith Curry, in which she states: “There will be a continuing need for fossil fuels. Rapid restrictions to fossil fuels before cleaner energy is available interferes with more highly ranked sustainability goals – no poverty, no hunger, affordable and clean energy, and industry-innovation-infrastructure. There is no human right to a safe or stable climate. Apart from the lack of an international agreement, such a “right” contains too many contradictions to be meaningful.”
I followed up with another excellent quote from that last article:
The arguments supporting the putative right to a safe climate are significantly weakened once the adverse effects of the policies to bring about a safe climate on food production are understood. In addition, climate and energy policies have significant environmental impacts and cause environmental degradation. For instance, forest biomass-based fuel causes deforestation, and on-shore and off-shore wind turbines and solar parks may (and, in fact, do) harm the social fabric, real estate prices, nature, biodiversity, the scenery, and human health. The mining and manufacturing required for batteries, and other renewable energy-related goods and infrastructure cause adverse environmental and human health impacts, and renewable energy also causes CO2 emissions. Given that European Human Rights Court has taken the position that the right to life also protects against environmental degradation and health risks, these adverse environmental and health impacts associated with any policies to respond to the Court’s judgment would have to be taken into account.
Jaime Jessop again: “Causation cannot be proved beyond any reasonable doubt.”
All are excellent points in my opinion. However, the knock-down argument to my mind, which means that the Court should have dismissed the case immediately, without seeking to stretch the law (and effectively make law), is due to the basis on which the Swiss ladies (technically a not-for-profit campaigning organisation which brought the proceedings on their behalf) framed their case (paragraphs 10 and 11 of the judgment):
The first applicant – Verein KlimaSeniorinnen Schweiz – is a non-profit association established under Swiss law (“the applicant association”). According to its Statute, the applicant association was established to promote and implement effective climate protection on behalf of its members. The members of the association are women living in Switzerland, the majority of whom are over the age of 70. The applicant association is committed to reducing greenhouse gas (“GHG”) emissions in Switzerland and their effects on global warming. The activity of the applicant association is stated to be in the interests of not only its members, but also of the general public and future generations, through effective climate protection. The applicant association pursues its purpose in particular through the provision of information, including educational activities, and by taking legal action in the interests of its members with regard to the effects of climate change. The applicant association has more than 2,000 members whose average age is 73. Close to 650 members are 75 or older.
For the purposes of the proceedings before the Grand Chamber, the applicant association solicited submissions by its members about the effects of climate change on them. The members described how their health and daily routines were affected by heatwaves.
In essence, the claim was to the effect that the lives and health of the elderly are being harmed by heatwaves. Heatwaves are caused by (or, at least, are becoming more extreme because of) climate change. Climate change is in substantial part caused by humankind’s ongoing release of greenhouse gases. Therefore the Swiss Government (being the government of the state where the ladies live) should take active measures to reduce greenhouse gas emissions.
As pointed out in the comments I have mentioned above, there are lots of issues here. Causation is highly problematic in general scientific terms. In addition, the Swiss nation’s contribution to global greenhouse gas emissions is so small as to make no measurable difference to the climate, therefore nothing the Swiss government does can make any difference to the lives and health of the ladies who brought the case. There is no right to protection from the climate (the Court in essence simply made one up).
But most of all, there is more to climate than just heat and heatwaves. There is also extreme cold. And many, many more people die of extreme cold than die of extreme heat – around the world, in Europe, and in Switzerland. For the foreseeable future gentle global warming will have the effect of reducing the number of deaths from extreme temperatures. Declaring that something should be done to reverse that trend (however futile and Canute-like such an order may be) is actually an order to take steps to increase the number of deaths from extreme temperatures. And on any basis (human rights-related or otherwise) that simply cannot be right. Needless to say, I can find no indication to suggest that the Court listened to any evidence regarding the harmful effects of extreme cold on the lives of elderly (or any other) Swiss residents, nor can I find any suggestion that they even considered the matter. The Court’s decision is one made in the darkness of great ignorance of the facts, despite the numerous paragraphs devoted to the IPCC and evidence of climate change. See paragraph 510, where the Court purports to justify interveneing to reduce heat-related deaths:
…the IPCC has found (with medium confidence) that anthropogenic climate change, particularly through increased frequency and severity of extreme events, increases heat-related human mortality. Other scientific studies have also found that heatwaves have caused tens of thousands of premature deaths in Europe since 2000. In this context, the IPCC has also found (with high confidence) that populations at “highest risk” of temperature-related morbidity and mortality include older adults, children, women, those with chronic diseases, and people taking certain medications…
Not a mention of deaths from extreme cold.
The other substantial problem, of course, is that the Court has also invented a new law which cannot actually be found in the European Convention of Human Rights. An activist Court of unelected (and unaccountable) Judges has simply made the law up to suit an activist agenda. And activism was very much in evidence in the case. Among the third party interveners who were allowed to have their say were the following:
United Nations High Commissioner for Human Rights.
United Nations Special Rapporteurs on toxics and human rights; on human rights and the environment; and the Independent Expert on the enjoyment of all human rights by older persons.
International Commission of Jurists (ICJ) and the ICJ Swiss Section (ICJ-CH).
European Network of National Human Rights Institutions (ENNHRI).
International Network for Economic, Social and Cultural Rights (ESCR Net).
The Human Rights Centre of Ghent University.
Professors Evelyne Schmid and Véronique Boillet (University of Lausanne).
Professors Sonia I. Seneviratne and Andreas Fischlin (Swiss Federal Institute of Technology Zurich).
Global Justice Clinic, Climate Litigation Accelerator and Professor C. Voigt (University of Oslo).
Our Children’s Trust, Oxfam France and Oxfam International and its affiliates (Oxfam).
Group of academics from the University of Bern (Professors Claus Beisbart, Thomas Frölicher, Martin Grosjean, Karin Ingold, Fortunat Joos, Jörg Künzli, C. Christoph Raible, Thomas Stocker, Ralph Winkler and Judith Wyttenbach, and Doctors Ana M. Vicedo Cabrera and Charlotte Blattner).
Center for International Environmental Law and Dr Margaretha Wewerinke Singh.
The Sabin Center for Climate Change Law at Columbia Law School, and:
Germanwatch, Greenpeace Germany and Scientists for Future.
It was certainly the view of Judge Eicke that the other sixteen Judges had made the law up and in doing so have gone too far. Here he sets the scene in the four opening paragraphs of his separate judgment:
To my regret, I am unable to agree with the majority either in relation to the methodology they have adopted or on the conclusions which they have come to both in relation to the admissibility (and, in particular, the question of “victim” status) as well as on the merits. In so far as I have voted for a violation of Article 6, the right of access to court, as I will explain in a little more detail below, my conclusion was reached on the basis of a very different (and, arguably, a more orthodox) approach to the Convention and the case-law thereunder.
Despite a careful and detailed engagement with the arguments advanced both by the parties and interveners in this case…as well as by my colleagues in the course of the deliberations, I find myself in a position where my disagreement goes well beyond a mere difference in the assessment of the evidence or a minor difference as to the law. The disagreement is of a more fundamental nature and, at least in part, goes to the very heart of the role of the Court within the Convention system and, more generally, the role of a court in the context of the unique and unprecedented challenges posed to humanity (including in but also across our societies) by anthropogenic climate change.
It is, of course, perfectly understood and accepted that, under Article 32 of the Convention, the Court’s jurisdiction extends to “all matters concerning the interpretation and application of the Convention” (Article 32 § 1) and that “[i]n the event of dispute as to whether the Court has jurisdiction, the Court shall decide” (Article 32 § 2). However, it is equally clear that this ultimate interpretative authority comes with immense responsibility; a responsibility which, in my view, is reflected in the Court’s normally careful, cautious and gradual approach to the evolutive interpretation of the Convention under what is frequently described as the “living instrument” doctrine. Unfortunately, for the reasons set out in a little more detail below, I have come to the conclusion that the majority in this case has gone well beyond what I consider to be, as a matter of international law, the permissible limits of evolutive interpretation.
In doing so, it has, in particular, unnecessarily expanded the concept of “victim” status/standing under Article 34 of the Convention and has created a new right (under Article 8 and, possibly, Article 2) 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” (§§ 519 and 544 of the Judgment) and/or imposed a new “primary duty” on Contracting Parties “to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change” (§ 545, emphasis added), covering both emissions emanating from within their territorial jurisdiction as well as “embedded emissions” (i.e. those generated through the import of goods and their consumption); none of which have any basis in Article 8 or any other provision of or Protocol to the Convention.
Interestingly perhaps, Judge Eicke, although German-born, has dual German and British nationality, and is the UK’s judge on the ECHR.
And its not all bad news. For all the hysteria surrounding the case (whether high fives at the BBC and the Guardian, or great anger and demands that the UK leaves the European Convention of Human Rights, by climate sceptics and others), the Court did have the grace to recognise its own limitations, and to pay lip service to the ongoing roles enjoyed by such concepts as democracy and national sovereignty. Her are the final two paragraphs of the main judgment – a good point on which to end, I think:
The Court further points out that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions and spirit of the Court’s judgment. However, in certain special circumstances the Court has found it useful to indicate to a respondent State the type of measure – individual and/or general – that might be taken to put an end to the situation which has given rise to the finding of a violation (ibid., § 294).
In the present case, having regard to the complexity and the nature of the issues involved, the Court is unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment. Given the differentiated margin of appreciation accorded to the State in this area (see paragraph 543 above), the Court considers that the respondent State, with the assistance of the Committee of Ministers, is better placed than the Court to assess the specific measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State, the adoption of measures aimed at ensuring that the domestic authorities comply with Convention requirements, as clarified in the present judgment.
Climate Scepticism 
Very good point Mark. In ruling that the state should be obligated to protect the elderly from the effects of extreme heatwaves on the assumption that the state has within its capacity the means to lessen the frequency and severity of heatwaves by contributing to a reduction in greenhouse gas emissions, thus reducing global mean surface temperature generally (a HUGELY dubious assumption for many reasons), the ECHR is effectively saying that any far more significant REDUCTION in cold weather related deaths because of warmer winters should be sacrificed in order to lessen the far smaller risk of extreme heat related deaths. So in championing the human rights of one select group of Swiss pensioners they are at the same time trashing the right to life of a far larger second group of pensioners! That fact alone should immediately annul this ridiculous decision.
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The last quoted paragraph in Mark Hodgson’s article here contains the usual non-accountability seen in judicial poking at the Gordian anthropogenic climate knot.
Paraphrased, it says that the Court waves its’ arms about signalling much virtue but has no idea how any meaningful action may accrue from this. Any useful, practical efforts (if such actually exists) are entirely for somebody else to construct.
It is this dense stupidity that causes me despair. It cannot be overcome with rational discourse or logic. As one of my colleagues remarked: an irrational position can only be addressed with an irrational reply.
Judith Curry’s excellent analysis of the real situation is emphasised by an unusual paucity of demurring comments. Most recognise that if CO2 emissions are really to blame, then country borders drawn on a map are completely irrelevant.
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JAIME
not too sure you are secure in your treatment of Swiss advantaged by warmer winters. I don’t know this for sure but when I lived in Saskatchewan and Alberta the inhabitants (who I believe would have similar climate preferences to the Swiss)much preferred their frigid winters to their grossly overheated summers. Almost all the important sports took place in the winters (except baseball). So I would conclude that if Swiss winters became warmer there would be a greater outcry than from heat stressed old ladies in warmer summers.
I and my family hated the winters, we joined the “snowbird” exodus by eastern Canadians for parts warmer (Florida, the West Indies and Hawaii). Two weeks of bliss, the rest wearing almost mandatory snowsuits.
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“Climate Change is Not a ‘Human Rights’ Issue”
https://dailysceptic.org/2024/04/11/climate-change-is-not-a-human-rights-issue/
By Ben Pile, once of this parish. As always, well worth a read.
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Alan, a big fuss was being made about excess heat deaths in Switzerland during the hot summer of 2015. Academics wrote papers about it. They also published this graph of excess deaths for the whole year. What do you notice? There was a moderate increase in excess deaths in summer 2015, but there was also a huge increase in excess deaths in winter/early spring 2015 which greatly exceeded the summer spike in both absolute and relative terms. The ‘scientific’ literature makes it clear that such extreme cold during winter months will become increasingly rare as the planet warms, thus taking action to prevent it from warming will mean that Swiss residents continue to die in large numbers during the cold season, thus violating their human rights. Ineluctable logic – which now does not apply at the dawning of the European Unenlightenment.
https://smw.ch/index.php/smw/article/view/2252/3384
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In my view the key question is not whether the European Court of Human Rights (ECtHR) misunderstood the science or what the implications for UK might be – no, important though these matters are, the overriding question is whether climate change is even a human rights issue. In an article today Ben Pile argues strongly that it’s not and, as I noted yesterday on the ‘Climate Litigation’ thread, Dr David McGrogan (Associate Professor of Law at Northumbria Law School) made what was really the same point when he argued that it’s ‘intolerable’ that ‘unelected, unaccountable judges sitting in the ECtHR’ can, by deciding (in the exercise of so-called ‘evolutive interpretation’) that climate change is covered by the Convention even though, as Mark notes above, it doesn’t make even the slightest mention of it, essentially make law ‘from whole cloth’. This criticism echoed Judge Eicke’s argument in his minority judgement that ‘the majority in this case has gone well beyond what I consider to be, as a matter of international law, the permissible limits of evolutive interpretation.’
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Robin,
Do we have a quantitative estimate of what the permissible limits of evolutive interpretation are? Because absent that, the billionaire funded Green Blob identified by Ben will surely continue to push judges to go well beyond those ill-defined limits.
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Jaime, no we don’t – as is confirmed by an excellent article in the Spectator that asks the same question as Ben Pile: ‘Is climate change really a human rights matter?’ It’s by Andrew Tettenborn, professor of law at Swansea Law School. Some extracts:
Indeed.
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In a most important article in the Telegraph about the ECHR decision – The international Left-wing elites are well on their way to crushing democracy – Allister Heath argues that the UK must now leave the court without delay. He puts it well: ‘The theft of power and influence from ordinary citizens, and its transfer to unelected, unaccountable lawyers and technocrats is accelerating.’
An extract:
But here’s the real challenge – this is about much more than climate change:
This is an important article and a few extracts hardly do it justice. If possible, read the whole thing.
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I’m finding that I can suddenly read Telegraph articles without being interrupted by a paywall, which seems very weird.
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My bold. This goes back to David McGrogan’s article where he argued that the traditional interpretation of a human right is a negative, i.e. something which the state should not do (e.g. murder people, or imprison them in their homes, or coerce them to get ‘vaccinated’ with an experimental injection where fully informed consent could never be realistically obtained). The ECHR is now expanding that remit to include things which the state must do in order not to violate the human rights of citizens.
The way I see it though, the ECHR is tying itself up in knots here because by legislating that the state must reduce carbon emissions to cool the planet and thus prevent dangerous heatwaves, they are also legislating for an increase in the frequency and severity of cold winters, and it would be quite legitimate therefore for another applicant or applicants to argue that their human rights are being adversely affected by the actions of government – which is the more traditional interpretation of a human right. Left wing lawyers have chosen to go down that rabbit hole and I don’t think it’s going to turn out well for them in the long run.
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I’m not sure we can take too much comfort from the final paragraphs quoted.:
It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State, the adoption of measures aimed at ensuring that the domestic authorities comply with Convention requirements, as clarified in the present judgment.
I read that to mean that the court reserves to itself the right to make further rulings if the Swiss government doesn’t follow the instructions of the Owellian sounding Committee of Minister (none of whom, I assume, have been elected by the Swiss voters
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hakinmaster,
I am a little more optimistic. The Court has clearly massively over-stepped the line, but I suspect the Judges concerned are aware of that. What other Court issues press releases? It is political, and it is assessing the impact before making its next move. If there is massive push-back with countries walking away from the ECHR, then I envisage a period of retrenchment for the Court. On the other hand, if no country leaves, and in fact countries seek to take note of the judgment and step up their climate policies, then I suspect the Court will become further emboldened.
For now, though, I think the Court will allow the Swiss government to decide on its next steps, and will watch and wait. None of which is to say that the current state of affairs is remotely satisfactory.
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Mark
I’m a bit more of a pessimist, myself.
Pessimist: an optimist with experience.
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Pessimism isn’t necessarily bad – that way you should never be too disappointed. :-)
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“The Overlooked Benefits of a Warmer Planet”
https://dailysceptic.org/2024/04/11/the-overlooked-benefits-of-a-warmer-planet/
“…a recent study published in the Lancet and done at Monash University showed that today, warmer temperatures save thousands of lives worldwide every year. This study found that “the global heat-related excess death ratio increased by 0·21 percentage points (0.13–0.31), leading to a net reduction in the overall ratio.” Ever since the Crimean War and the continuing research begun by Florence Nightingale, we know that warmth saves lives while cold kills many more people. In other words, the current warming is saving eight lives for every life that is lost due to premature death attributed to temperature.
Therefore, there is no current need to halt the burning of fossil fuels. The warming associated with climate change is so far saving thousands of lives every year, greening our planet and shrinking our deserts.…”
Someone among those numerous third party interveners should have told the ECHR.
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Paul Homewood has a piece based on a Telegraph article about a case being brought by a man whose house was lost to coastal erosion:
The suggestion is that the recent ECHR decision has strengthened his claim. The problem now is (to mix my metaphors) that the Court has crossed the line and has opened Pandora’s Box. What now is to stop people suing for almost anything? Since the old Swiss ladies are to be protected from heatwaves (sic) by forcing the Swiss government to step up its climate change measures, what about my right not to have my life adversely affected by feeling the cold more and more as I age? Perhaps I can sue the ECHR for its decision, which can be used by climate campaigners to force the UK government to spend lots of money vainly trying to slow down the modest warming from which I have been benefiting? Perhaps I can sue the UK government for policies which have damaged my right to home and family life by forcing up my heating bills to unsustainable levels? If a man can sue over the loss of his house to the sea, perhaps home-owners whose lives have been blighted (and homes rendered unsaleable) by the proximity of National Grid infrastructure or wind or solar farms could also sue the Government? Perhaps far right campaigners could sue the Government for spending so much money on foreign aid that they might say should have been spent on UK education or the NHS? Where does it end?
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Another day, another article about the ECHR decision. This time it’s Chris Morrison in the Daily Sceptic taking a look at the real winners –‘the elite billionaire paymasters behind lawfare activists such as Greenpeace and Client Earth’.
An extract – on the somewhat broader issue of the frightening and unacceptable objective of lawfare:
An interesting read.
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That man suing for the government not acting to prevent climate change, sea-level rise and coastal erosion devouring his house doesn’t seem to remember the message of Cnut. Education these days is so lacking.
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Robin,
Chris Morrison also says:
This suggests to me that it is not enough for green billionaires to use money alone as a lever to undermine democracy on the imposition of Net Zero, they must also attempt to brainwash judges using their own brand of pseudoscience and ‘alternative facts’. Particularly in the case of extreme weather attribution, they are uniquely vulnerable to being exposed as the Snake Oil salesmen which they are.
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And today brings yet another article – What has climate change got to do with the ECHR? –on the ECHR ruling. Its author Luke Gittos, a Spiked columnist, describes it, quite correctly in my opinion, as ‘a deeply troubling ruling’. He notes how it:
His conclusion:
Amen to that.
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To further drive home my point above, they know that they are uniquely vulnerable on ‘the Science’, which is why the WHO in their ‘climate toolkit’ aimed at medical professionals says this:
If that’s not running scared I don’t know what is. From Ben’s excellent article at DS:
https://dailysceptic.org/2024/04/12/why-is-the-who-asking-doctors-to-lie-to-promote-climate-alarm/
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That’s a superb article by Ben – well worth a read.
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Agreed, a beautifully written and argued essay, but it treats health professionals as near passive recipients of WHO messaging. In my limited experience most are not such sponges. If they find the time they will argue incessantly and upon all sorts of subjects. Most are also knowledgeable about those subjects. I wonder if this is an old fashioned view of mine that is now-past. I keep reading that they are grossly overworked in the U.K. and don’t have the time, but those I have interacted with over the past few years (rather too many) seem to have the time for pleasantries. Perhaps WHO will get a surprise.
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Regarding Robin’s point above:
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Mark: I’m about to use this thread to ask for advice. I hope that’s acceptable.
I’m a founder member of OxCAN (‘Oxford Climate Alumni Network’), a website set up in 2020 for Oxford University alumni interested in matters related to climate change. When we started, it hosted a vigorous debate about climate change – but did so via an email system that was so popular it was soon overwhelmed. So the organisers tried and failed to find a better way of encouraging debate and ended up using the ‘discussion-board’ at Slack – a clumsy and not very satisfactory system. As a result and as far as I can see, any other sceptical members have lost interest and the organisation has become yet another that believes without question that we face a climate emergency and that all that matters is what we’re doing to ‘tackle’ it. Here’s the current website: https://www.oxfordclimatealumni.com. Note the dreary objectives referred to in ‘About Us’.
Well, I suggested to them recently that they really should try to persuade members to recreate the 2020 spirit by organising a debate. And, after trying half-heartedly to find a way of so doing, they thought that the simplest solution was to use Slack’s ‘thread’ feature. It was suggested that, as I had started this, I might be willing to draft an invitation to members; and that the subject for discussion might be the ECHR decision. Not a bad idea – although they thought a discussion should be based on references to Guardian and BBC articles on the topic. Obviously, I cannot agree to that. But perhaps it might make sense to refer to the Guardian (or BBC) piece and to one of the articles we’ve been discussing here. But which one? Ideally, I’d like it to be either Andrew Tettenborn’s article in the Spectator or, best of all, Allister Heath’s in the Telegraph. But both are behind a paywall so must I think be ruled out. That leaves Francis Menton (Manhattan Contrarian), Judith Curry (Climate Etc.), David McGrogan (Daily Sceptic), Ben Pile (Daily Sceptic), Chris Morrison (Daily Sceptic) and Luke Gittos (Spiked).
I tend to favour Luke Gittos. What do others think?
PS: if a debate happens I hope any Oxford alumnus at Cliscep will be able to join in.
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Perfectly acceptable , Robin, and as a fellow Oxford alumnus, I should be happy to join in.
Unusually I disagree with you (a rare event). Of all the articles you mention (all of which I have read) I thought that the Gittos one, worthy though it’s was, brought the least to the party. My choices would probably be Chris Morrison, Ben Pile, or maybe Francis Menton.
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The Spectator has published another article – The courts can’t solve climate change – by Andrew Tettenborn. It’s little more than a rehash of his (excellent) earlier piece – although I have doubts about his comment that ‘nearly everyone accepts that we need to take steps to deal with climate change‘.
His concluding paragraph:
True. But will they?
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There is this counterpoint, though focused on UK sovereignty
https://www.politico.eu/article/uk-echr-strasbourg-human-rights-raab-supreme-court/
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Mark, the reason I favour Gittos is that he maintains a tight focus on what I believe is the main issue: that the ECHR is a deadly threat to democracy. Neither Pile nor Morrison – for all good stuff in their articles – do that. Here for example is an extract from Gittos’s article:
That – to my mind – is what needs to be said. Loudly and persistently.
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Thanks Ron. Dominic Raab made some compelling points. The problem is he made them nearly three years ago and the promised ‘overhaul’ of the U.K.’s Human Rights Act didn’t happen.
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Mark: might I have persuaded you about Gittos? Don’t forget that, in a debate (if we have one), I should be able to raise many of the points referred to by, for example, Andrew Tettenborn and Allister Heath as well as Ben and Chris. BTW I dropped Menton because his article, although excellent, was largely concerned with the US.
I’m anxious to have a simple message – and, for me, that’s how the ECHR threatens democracy.
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Robin,
The extent to which I’m persuaded depends on the purpose of the debate you hope to have. If it’s one step at a time and persuade the others that the ECHR decision is a step too far, a danger to democracy, then yes, I suppose I am persuaded that the Gittos article is the one to go with.
On the other hand, if it’s to be a full-on debate about climate change generally, with the recent ECHR decision being simply the peg on which to hang it, then no, I don’t think it does the job. Chris Morrison’s or Ben Pile’s articles would serve better in that scenario.
Sorry to be equivocal about it!
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Mark, the plan is to discuss the ECHR ruling. That’s all. Of course, if that gets a lot of people involved and interested, it may lead to a wider discussion about climate change. But I’m dubious about even the initial objective being achieved as OxCAN has deteriorated to a pretty hopeless organisation. So, if the debate goes ahead (a big if) I’ll stick with Gittos.
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OK, that being the plan, I’m convinced. Let me know how I can get involved, as and when.
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Well, I’ve just registered, and have messaged you via that website to check that I am up and running.
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And I’ve just had a look at the discussion board. I see what you’re up against, but as usual, I am impressed at how calm and polite you always are. I shall endeavour to follow suit.
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Irony at the Guardian, especially in the wake of all the third party interveners, many with opaque funding, all with lawyers, who were involved in the recent ECHR decision. The Guardian often tries to persuade me to donate to them by claiming that “This is what we’re up against”. And what are they up against?
“Teams of lawyers from the rich and powerful trying to stop us publishing stories they don’t want you to see.
Lobby groups with opaque funding who are determined to undermine facts about the climate emergency and other established science.“
Sound like a conspiracy theory to me. And if it’s true, how come none of them intervened in the recent ECHR case to put the other side of the case?
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“Strasbourg court’s Swiss climate ruling could have global impact, say experts
Decision by European court of human rights around vulnerability of older women to heatwaves marks significant shift”
https://www.theguardian.com/law/2024/apr/13/swiss-climate-ruling-global-impact-european-court-human-rights
“…The ruling opens the way for several climate-related lawsuits that had been adjourned at the court. One brought by Greenpeace Nordic against the Norwegian government seeks to prevent the expansion of fossil fuel extraction in the Arctic. Another is being brought by an Austrian man with a temperature-dependent form of multiple sclerosis who argues, like the Swiss women, that this makes him particularly vulnerable to heatwaves.
It is also expected to bolster ongoing lawsuits around Europe.
The UK’s high court recently allowed Friends of the Earth and two individuals affected by the impacts of climate change to challenge what they describe as the government’s “inadequate” climate protection strategy. A two-day hearing into the national adaptation plan will take place in June.
Will Rundle, head of legal for Friends of the Earth, said it had similarities with the Swiss lawsuit “not least because our case also deals with deficient state action on climate and its adverse impact on health and human rights”.
In previous decisions, UK judges noted that the European convention had not yet been applied to climate change, suggesting they will now have to consider the issue in a fresh light.
Experts believe the latest ruling opens the floodgates for future litigation around Europe.
Although the judgment applies directly only to Switzerland, it has clear implications for other states within the Council of Europe that have not set ambitious emission reduction targets or put in place good climate governance…
…The ruling will make international waves if it is cited in forthcoming advisory opinions on climate change from the international court of justice and the inter-American court of human rights.
And it may even influence litigation outside European borders, because courts are increasingly having to handle questions of state responsibility beyond national borders and are looking at other jurisdictions for guidance in how to handle climate lawsuits.
Kelly Matheson, deputy director of global climate litigation at Our Children’s Trust, said: “Courts in the US are trying to dismiss these sorts of cases. Or they’re saying this is not our job, this is the job of the other two branches of government. So I think that statement will have influence in US litigation.”
Our Children’s Trust, a non-profit organisation, has orchestrated many high-profile youth-led lawsuits across the US including last year’s successful case in Montana and submitted third-party scientific briefs in the cases before the Strasbourg court….
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Another article (https://www.telegraph.co.uk/news/2024/04/13/finish-work-of-brexit-finally-bring-control-to-parliament/) about the ECHR – this time by Daniel Hannan in the Sunday Telegraph:
‘It’s time to finish the work of Brexit, and finally bring control back to our sovereign Parliament
A ludicrous decision in Strasbourg proves that we must leave the ECHR or be governed by the whims of judges
I liked this bit:
Hannan’s comment:
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“Sunak criticises ‘complete overreach’ of ‘illegitimate’ ECHR ruling
Downing Street’s intervention over court’s decision to make net zero a human right comes ahead of Rwanda votes”
https://www.telegraph.co.uk/politics/2024/04/13/rishi-sunak-criticises-echr-illegitimate-ruling-net-zero/
“Rishi Sunak has hit out at the “complete overreach” of an “illegitimate” ruling by the European Court of Human Rights that imposes a duty on governments to achieve net zero…“
The rest is behind a paywall. However, I suspect the ECHR decision is manna from heaven for the Tories. Attacking the ECHR over its unpopular Rwanda plan has proven to offer thin gruel for Tory electoral prospects, but the recent decision is – I would suggest – rightly much more controversial, and offers considerable scope for a Tory government that looks as if it is about to go down with all hands on deck.
I wouldn’t be surprised to find a commitment to leave the ECHR featuring in the Tory manifesto at the general election. The interesting question is the extent to which that would also lead into policies attacking (or at least seriously watering down) net zero. As things stand that would seem to be the best option for causing Labour serious problems at the polls.
Not that I wish to offer advice to help the Tories, but as Churchill said about Stalin, my enemy’s enemy is my friend (or words to that effect). Labour’s net zero plans threaten us with total ruin. Anything that can stop that gets my (very reluctant, if the only thing that can stop it is the Tories) support.
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Text of that article via my magical new found ability to read beyond the Telegraph paywall:
There’s a poll at the end. 91% of readers think we should leave the ECHR.
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Robin Guenier
There is no doubt the Swiss system of referenda (and recall) is very irritating to authoritative governments and myriad supporters. I applaud that and would quite like to have my own Govts constrained so, even when referenda results are not those I may have preferred.
My question here though is how could a referendum result be overturned by some court (irrespective of what, which, where) without a further recall referendum ? In short, where are the Constitutional loopholes to allow these eels to wriggle ?
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ianl: the answer, at least so far as the ECHR is concerned, is that by signing up to the Convention a country agrees to be bound by its rulings irrespective of any ‘internal’ position, democratic or otherwise.
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Apologies Jaime, just found that comment in “pending” and released it.
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The leftwaffe are increasingly using left leaning Courts to gain something – science and law & order have been corrupted
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Jaime – thanks for the full link (top paywall dodger :-).
Just started to read Article 8 of the Convention –
“I. The structure of Article 8.
Right to respect for private and family life
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
HUDOC keywords
Expulsion (8) – Extradition (8) – Positive obligations (8) Respect for private life (81) – Respect for family life (81) – Respect for home (81) – Respect for correspondence (81) Public authority (82) – Interference (82) – In accordance with the law (82) – Accessibility (82) – Foreseeability (82) – Safeguards against abuse (82) – Necessary in a democratic society (82) – National security (82) – Public safety (82) – Economic wellbeing of the country (82) – Prevention of disorder (82) –Prevention of crime (82) – Protection of health (82) – Protection of morals (82) – Protection of the rights and freedoms of others (82)”
So from the start they seem to say/include this – “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of the economic wellbeing of the country”
Is that not a get out clause for the Swiss, UK & others?
PS – maybe I need to read further, but not now, it’s wineoclock 🙂
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dfhunter, I don’t think that failing to comply with a judgment of the ECHR could be said to be “in accordance with the law” for so long as Switzerland (or any other country – including the UK) is a member of the Convention.
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Here’s another Court, whose activities may also soon be in the headlines:
“‘Children won’t be able to survive’: inter-American court to hear from climate victims
Historic hearing will receive submissions from people whose human rights have been affected by climate change”
https://www.theguardian.com/environment/2024/apr/22/inter-american-court-climate-hearing-hear-from-victims-barbados
“...Medina will be telling his story this week to a panel of judges in Barbados during the first part of a historic hearing on climate change by the inter-American court of human rights.
The inquiry was instigated by Colombia and Chile, which together asked the court to set out what legal responsibilities states have to tackle climate change and to stop it breaching people’s human rights…
…The Costa Rica-based court was set up in 1979 to interpret and apply the US convention on human rights, a treaty ratified by members of the Organization of American States. Twenty states have accepted its jurisdiction, including most Latin American countries and several Caribbean islands. Neither the US nor Canada have done so.
It is the third international court tasked with providing an advisory opinion on climate change, alongside the international court of justice and the international tribunal for the law of the aea. Such opinions are highly influential and set the framework for future legal action.
However, the inter-American court is the only one focusing on human rights….“
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Another good post by Francis Menton:
Even Stupider Than The Stupidest Litigation In The Country – https://www.manhattancontrarian.com/blog/2024-5-11-even-stupider-than-the-stupidest-litigation-in-the-country
He quotes this comment:
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