A victory? Climate, rights, and international law

ECHR ruling more nuanced than reported

Source: ECHR website

Headlines don’t always tell the full story.

The European Court of Human Rights delivered three climate-related rulings last week. Each in its own way illustrates the problem of human rights and of the governance of global concerns. Let’s look at the three cases in outline and then consider the nature of rights and the limits of law.

The headline-grabber was the case brought by an association of self-described women “seniors”– the Verein KlimaSeniorinnen Schweiz – and four named individuals against the Swiss government. They alleged that the government had failed to act in accordance with its promises on climate in violation of rights granted in the human rights convention. Television news broadcasts – in Britain but I suspect in many other countries – showed clips of elderly women in Switzerland cheering and waving banners.

Here’s what the court said. It is more nuanced than what we saw in the news:

“The Court found that the Convention 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,” it said.

But it did not accept that the four individuals were permitted to raise the complaint. The did not qualify as “victims”. Only the association did.

Th two other cases were dismissed, for different reasons.

A similar complaint, lodged by a former inhabitant and mayor of the municipality of Grande-Synthe in France, was thrown out for lack of standing. Like the Swiss individuals, they were not “victims” under Article 34 of the convention.

A case from Portugal, against the Portuguese government but also other states, was thrown out, but this one because they complainants had not previously exhausted the legal avenues in Portugal before coming to the European Court.

The headlines focused on the successful case and the stories that followed largely ignored the other two. As a journalist, I can see why, but I worry about how easily attempts to simplify events can roll into oversimplification, and from there into misunderstanding and downright error. These cases show the difficulty law has in dealing with complex problems as well as the limits of international law in finding a way to define let along enforce human rights.

Standing matters.

• The Portuguese ruling seems to say that Portuguese people can’t complain about actions (or inactions) of governments other than their own. And yet if climate inaction by anyone affects everyone, on what logical basis (i.e., not legal basis) are those people not victims? Why did they have to pursue cases in Portugal first, if the damage to the environment was done by other states – perhaps even more than by Portugal?

• The French case fell on the issue of victimhood, which the ECHR did not invoke in the Portuguese case. The two individuals had sued their home country, not others. Like the individuals in the Swiss case, they could not claim personal damage.

• Only the Swiss association could, presumably because as a collective, they represented a larger body of people, even a class of people larger than its membership. Did Swiss government inaction endanger the rights of the Swiss people generally, but not individual Swiss citizens?

Standing narrows the application of any remedies. Individuals seem unable to claim recompense, and only claims against one’s own government give even collectives standing with respect to human rights.

Human rights, too, are a contested area, not just in law but also conceptually, philosophically. One argument against even having a European Court of Human Rights is that rights are conferred by states. If human rights are deemed to transcend earthly authority, this argument holds, they must either derive from some transcendent order (a “god”, perhaps) or exist only as a human convention. They require consent of the governed, that is, states, for it is states that are parties to the human rights convention. Logically, then, rights are granted if not by a “god”, then by states. The implication of the latter justifies the ECHR’s rulings on standing in the Portuguese case, in contrast to both the French and Swiss cases.

And states can withdraw from the human rights convention, a debate we have seen in Britain during and since the 2016 Brexit referendum.

So, the ruling of the court in the Swiss case is much narrower than the headlines suggest. But it is not necessarily without significance. France and Portugal (and the other states in the Portuguese case) are off the hook for now. But at least since the days of Thomas Hobbes (1651/1946), much political theory has argued that states gain their moral and political legitimacy from the consent (or at least acquiescence) of the governed. All three cases suggest that at least some of the governed are not quiescent when it comes to question of climate change. Others may well follow – unless states come closer to meeting their climate commitments.

Hobbes, T. (1651/1946). Leviathan, or the matter, forme and power of a commonwealth ecclesiasticall and civil. Oxford: Basil Blackwell.