On April 9 2024, the Grand Chamber of the European Court of Human Rights (hereinafter, the ECHR) rendered landmark rulings in three separate climate cases. Not only do these judgments mark a historic milestone in terms of climate change litigation and all environment-related litigation falling within the scope of the European Convention on Human Rights, but also the Court's careful systematization of its reasoning means that the solution it has adopted could be used as a benchmark for assessing the conduct of States and private individuals alike in environmental matters.

While the Court –always wary when it comes to actio popularis complaints– dismissed the claim brought by six Portuguese youths against thirty-three States (ECHR, Grand Chamber, April 9, 2024, no. 39371/20, Duarte Agostinho and other vs. Portugal and 32 others) and the individual claim brought by the mayor of Grande-Synthe against the French State (ECHR, Grand Chamber, April 9, 2024, no. 7189/21, Carême vs. France), it did however rule in favor of an association that had filed an action against Switzerland (ECHR, Grand Chamber, April 9, 2024, no. 53600/20, Verein KlimaSeriorinnen Schweiz and others vs. Switzerland). In this matter, four Swiss women –who will certainly go down in litigation history as the “Swiss Grannies”– and the Verein KlimaSeniorinnen Schweiz association (over 2,500 Swiss women aged over 64) had filed a joint complaint alleging that the Swiss Confederation had failed to take the necessary measures aimed at mitigating the consequences of climate change and this, in breach of the obligations imposed by the European Convention on Human Rights on the Member States, and in particular in its Articles 2 and 8.

In this respect, while we know that the European Convention on Human Rights has not recognized the right to environmental protection –as such– as a protected right, the ECHR has developed a body of case law in the environmental field that is as dynamic as it is constructive. The ECHR’s introduction of environment-based guarantees took place in three distinct movements: first, in disputes involving environmental disturbances, the Court made use of the procedural rights set out in the Convention, in particular the guarantee of the right to an effective remedy under Article 6 (ECHR, February 21, 1990, no. 9310/81, Powell and Rayner vs. United Kingdom). The Court went on to consider that environmental concerns could justify State interference and thus restrict guaranteed rights such as the right of property under Article 1 of the Additional Protocol no. 1 (ECHR, February 18, 1991, no. 12033/86, Fredin vs. Sweden no. 1). Lastly, the Court has developed its case law in the environmental field, considering that the exercise of some of the rights guaranteed by the Convention, in particular Articles 2 and 8, may be compromised by environmental degradation and exposure to environmental risks (ECHR, December 9, 1994, no. 16798/90, López Ostra vs. Spain).

The debate around the right to life guaranteed by Article 2 was quickly set aside by the Court, insofar as it did not detect in the climatic risk an imminent lethal risk weighing on the claimants.

The debate did however thrive on the basis of Article 8 of the European Convention whereby “everyone has the right to respect for their private and family life, home and correspondence”. Since the aforesaid López Ostra ruling, the Court now considers itself in a position to assess environmental nuisances and their degree of seriousness; it deems that, even without presenting a grave danger for a person's health, serious environmental damage can nonetheless harm his/her well-being, deprive him/her of the enjoyment of his/her home and thus affect his/her private and family life. This is assessed by taking into account a number of relevant factors such as the concerned individuals’ age, profession or lifestyle.

As regards the States’ obligation in terms of climate protection, the Court considers that in light of the work conducted by the IPCC and scientific consensus, individuals have a right to fear, both now and in the future, “the serious adverse effects of climate change on lives, health, well-being and quality of life”. Article 8 “encompasses a right for individuals to effective protection by the State authorities from [these] serious adverse effects…” and consequently the “primary duty was to adopt, and to apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change”.

The Court gave concrete expression to this positive obligation, ruling that, in view of the international commitments made by the States parties to the Convention, in particular through the Paris Agreement, “States needed to put in place the necessary regulations and measures aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights under Article 8”. To this end, the Court has recently affirmed that States must undertake measures to reduce their GHG emission levels, “with a view to reaching net neutrality within, in principle, the next three decades (…)”. In this respect, the States must implement “the relevant targets and timelines [which] must form an integral part of the domestic regulatory framework, as a basis for general and sectoral mitigation measures”.

It is against the backdrop of this obligation that the Court then examined Switzerland's climate action and found it to be inadequate. In addition to the details of the Court's criticisms of Swiss legislation, what is particularly noteworthy here is that, far from being content with a general statement, the Court goes on to list the requirements incumbent on Member States: adopt general measures together with a timetable; set intermediate targets and pathways; provide information making it possible to assess the outcome; update the relevant targets on the basis of the best available data; act in a timely, appropriate and consistent manner in drawing up and implementing the relevant legislation and measures.

While this ruling obviously has a major impact on States and national courts, which have and will have to assess their climate commitments and monitor their application (see the rulings handed down on November 19, 2020, July 1, 2021 and May 10, 2023 in the Commune de Grande-Synthe cases), it is legitimate to ponder the impact it will have on private economic players and the monitoring of their compliance with climate-related obligations. The ECHR's five-point analysis grid can easily be applied to the monitoring of corporate behavior. In this respect, another strong signal will be given by the Court of Appeal in The Hague, which is due to hand down its decision in the Shell case, all the more so as in its first-instance judgment of May 26, 2021, the District Court of The Hague relied on Article 8 of the ECHR to uphold the company's liability.