Particularly of note was the 2024 Veirein KlimaSeniorinnen Schweiz and Others v. Switzerland case, in which an association of senior Swiss women (Senior Women for Climate Protection Switzerland) took the Swiss government to the ECtHR as the climate crisis threatened their health. They applied on the basis that women’s right to life and health under Article 2 and Article 8 of the European Convention of Human Rights was violated by Switzerland’s inadequate climate policies and that after exhausting all national remedies, their case was rejected by the Swiss Federal Supreme Court on arbitrary grounds (against their right to fair trial under Article 6). The ECtHR found a violation of their Article 8 and Article 6 rights.
The expert witnesses who testified before the committee were: Lord Jonathan Sumption KC (a former Supreme Court Justice); Jessica Simor KC (a barrister from Matrix Chambers who represented the complainants in the Swiss case); and Nikki Reisch (Director of Climate and Energy and Program and Director of the Climate & Energy Program at the Center for International Environmental Law).
The participants were divided on multiple topics. Particularly of note for its rule of law implications was Lord Sumption and Nikki Reisch’s debate on the extent of rights protection within Article 8 of the European Convention of Human Rights. This explicitly protects the “Right to respect for private and family life, home and correspondence” and has been extended, as noted by the meeting chair, to include topics such as health (relevant to the Swiss case), biomedical data and homosexuality. Therefore, as was argued by Reisch, the court’s decision that this right was engaged in the Swiss case may be unsurprising.
This was opposed by Lord Sumpton, who worried about the implications this would have on countries’ legislative power on climate change as this topic is politically sensitive, complex and controversial, with no definitive scientific consensus on timings and targets that would constitute sufficient state action. He was concerned about the overextension of the Article 8 right leading to unpredictability, citing the first requirement of the rule of law as law being ascertainable and not retrospective: “You can’t have moving goalposts and call it law.” As noted by Sumption, this is a common critique raised by the ECtHR about domestic legislation.
Reisch, however, found that this was nothing groundbreaking, as there have been previous cases applying Article 8 to protection against environmental law. She drew on the “effectiveness” principle that specifies that European human rights are not illusory, stressing that climate change is the most real, explicit, growing risk to human rights (including those specified in Article 8). Her clarification of what the full scale of potential Article 8 applications is likely to be was unfortunately cut off due to time constraints, but she essentially stated that it could be applied to anything that intrudes on a person’s well-being and autonomy.
The impacts the ECtHR judgment is likely to have on the UK were unclear, with Sumption seeing the decision as overreaching, with compromise being needed between the British state and the people to make such policies. In contrast, Reisch drew on recent UK High Court decisions to show that the UK has adhered more closely to their international obligations and has shown that they are willing to be held to account for them.
Hopefully, the position statements and explanatory notes from the witnesses will provide more clarity on this issue.
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