Human Rights Climate Cases: Developments in Standing Post-Verein KlimaSeniorinnen Schweiz

A year on from the landmark judgment of the European Court of Human Rights (“ECtHR”) in Verein KlimaSeniorinnen Schweiz v Switzerland (“VKS”), which found that Switzerland’s failure to take sufficient action on climate change was in breach of the European Convention on Human Rights, decisions have started to be issued interpreting various elements of the VKS judgment, including with respect to the complex and interesting issue of standing in rights-based climate cases.

Standing of associations to bring climate actions

One of the key findings made in VKS was that associations such as NGOs could have standing to bring climate-related claims on behalf of the community as a whole, before the ECtHR.

In VKS, the Court found that the individual applicants (elderly Swiss women who were members of Verein KlimaSeniorinnen Schweiz, an NGO) were not sufficiently affected by climate change to have standing: they were not suffering a high intensity of exposure to the adverse effects of climate change nor was there a pressing need to ensure their individual protection.

However, the Court went on to grant Verein KlimaSeniorinnen Schweiz itself standing, including because of “the special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context”. This was a novel step: the ECtHR has previously only allowed associations to bring claims where they are themselves victims – and therefore directly affected – by an infringement.

Further analysis on the findings in VKS is available in our commentary from last year, here and here.

Interpreting VKS in climate-adaptation cases

One of the first cases to consider VKS in the national courts was R (Friends of the Earth) v Secretary of State for Environment, Food and Rural Affairs, in which the applicants challenged the legality of the third National Adaptation Programme (“NAP3”), which sought to address and adapt to the risks arising from climate change.

The claim was brought by three parties jointly: Friends of the Earth, an individual whose coastal home had been endangered by coastal erosion (and was then demolished), and an individual with health conditions which made him vulnerable to extreme heat. The claimants made various arguments, including that Convention rights were being infringed by the inadequacy of NAP3. These arguments were rejected, broadly because the approach taken by the government was considered to fall into the margin of appreciation afforded to Convention states, and because the claim could be distinguished from VKS as the latter focused on climate mitigation rather than adaptation.

Judgment was given by Mr Justice Chamberlain who, in obiter, commented on standing, ostensibly rejecting any suggestion that the approach taken in VKS to individual applicants in climate cases was more restrictive than in other cases.  Rather, it was noted that the particular nature of climate mitigation cases (such as VKS) meant it might be difficult to establish “direct impact” on the applicant, and therefore difficult for them to have standing. By contrast: “In the field of adaptation, however, the causal link between the lack of particular measures and the effect on the claimant may be easier to establish”. On that basis, the Court’s provisional view was that the individual claimants in the case would have standing.

The claimants chose not to pursue the argument that Friends of the Earth also had standing. As a result, two questions about the possibility of NGOs bringing human rights case in a climate context, in the UK, remain unanswered.

First, it remains unclear whether organisations would have standing in a climate-adaptation on the basis of the judgment in VKS. The comments on individual standing in the court’s judgment leave some doubt, although it is notable that VKS did make reference to the importance of both mitigation and adaptation measures in the context of climate change.

Second, it is uncertain whether Section 7 of the Human Rights Act 1998 (the “Act”), which governs standing for Convention cases brought in the UK, must now be interpreted so as to allow organisations standing. The uncertainty persists because the judgment in VKS concludes that associations may have standing in climate cases despite the fact they are not themselves victims of Convention infringements, but section 7 only permits proceedings under the Act to be brought by those who are victims. A possible solution may be that the UK Courts will rely on Section 3 of the Act (which requires primary legislation – including the Act itself – to be read and given effect in a way which is compatible with the Convention rights) to interpret Section 7, thereby allowing standing for associations in appropriate climate cases.

Interpreting VKS in broader environmental cases

Earlier this year, the ECtHR handed down the judgment in Cannavacciuolo v Italy. The applicants – 41 individual applicants and five associations – complained of longstanding environmental pollution resulting from illegally burned waste in northern Italy and the alleged failure of the Italian authorities to prevent this.

On the substantive case, the Court extended the findings in VKS, holding that Article 2, the right to life, was engaged. On standing, the Court was split: ultimately, it granted standing only to those applicants who were alive (rather than those bringing claims on behalf of deceased relatives) and suffering an illness associated with the pollution. Of particular note, is the Court’s finding that associations did not have standing. The majority found that the approach in VKS was limited to climate change cases specifically, and the justification for the approach taken in VKS – that climate change was a “common concern of humankind” and one that required “intergenerational burden-sharing” – did not apply to broader environmental claims.

This suggests that, for the time being at least, the ECtHR is taking a circumspect approach to the expansion of standing, despite one of two dissenting judges in Cannavacciuolo criticising the “artificial[ity]” of “draw[ing] such a clear-cut distinction between climate-related issues, on the one hand, and the environment, on the other”. It will be very interesting to see if and how that distinction is developed and where different environmental cases will fall in relation to it: the second dissenting judge, for example, noted that the widespread environmental harm under consideration in Cannavacciuolo indeed “raises an issue of intergenerational burden‑sharing and impacts most heavily on various vulnerable groups in society, who need special care and protection from the authorities”.

Comment

The approach to standing in VKS represented a very significant development in European Convention of Human Rights’ case law, allowing climate mitigation claims to be brought by organisations where individuals would not satisfy the otherwise fairly stringent test for standing under the Convention.  

We are now seeing how VKS is being applied and developed. With respect to individuals, Cannavacciuolo provides further guidance on what level of harm from a broad environmental issue is required for individuals to be granted standing. We will have additional guidance relatively soon in another climate mitigation case: in Müllner v Austria, the applicant suffers from multiple sclerosis which is worsened by increases in temperature. Mr Müllner’s case involves ostensibly direct harms associated with the effects of climate change and could therefore meet the test that has been outlined by the Court in VKS; we await the approach adopted by the ECtHR.

The interpretation of standing of organisations looks set for further evolution, including in the UK courts. and further consideration of Section 7 of the Act (including how it may interact with Section 3) will be watched closely, in the hope that some clarity may emerge as to the sort of cases in which associations (rather than individuals) will have standing going forward.