It may not be long before a landmark European ruling on the human rights impacts of climate change makes its way into Canada’s courts, a leading Canadian environmental lawyer said Tuesday, after the continent’s highest human rights court ruled that Switzerland must better protect its people from the consequences of the climate emergency.
“At the end of the day, it’s only a matter of time before this question of whether the Charter of Rights and Freedoms can protect us from the climate crisis makes its way to the Supreme Court of Canada, and this growing chorus of findings from judges in Europe will be of great assistance in those cases,” Ecojustice staff lawyer Fraser Thomson told The Energy Mix Tuesday.
“It emphasizes what other courts in Europe have found: that governments’ specific actions in relation to setting and implementing a 2030 climate target are a commitment that can be reviewed by the courts for compliance with human rights.”
Yesterday’s ruling “will inspire cases all around Europe, and more than likely around the world,” Thomson predicted. “It represents the growing chorus, the growing recognition that climate change is a human rights crisis, and that the 2020s in the most critical decade” in the fight to get global heating under control.
Thomson is the lawyer arguing on behalf of seven youth plaintiffs who challenged the Ontario government’s 2018 Cap and Trade Cancellation Act (CTCA) on Charter of Rights grounds. That case is now under appeal, after a judge dismissed it last spring while still scorching the province’s climate plan.
While it’s likely too late for the Swiss case to affect the Ontario appeal, Thomson said the decision will help infuse the connection between climate change and human rights into Canadian legal thinking.
“The Supreme Court of Canada has looked to European courts when determining how Canada’s legal system should tackle the climate crisis,” he told The Mix. The new ruling also “puts an emphasis on the growing consensus, particularly in Europe, that the climate crisis is a human rights crisis, and that if governments continue to exacerbate it, that citizens have the option to go to court.”
As the climate emergency worsens, he added, “we’ve seen that climate litigation has emerged as a beacon of hope. It empowers citizens to hold their governments to account for putting their future at risk.” Now, anyone arguing in a Canadian court that climate change violates their Charter rights “will be referring to these cases, and this case today will really bolster their claim.”
In the case against Switzerland, the European Court of Human Rights (ECHR) sided with a group of older women against their government in a ruling that could have implications across the continent, The Associated Press reports. It rejected two other, similar cases on procedural grounds—a high-profile one brought by Portuguese young people and another by a French mayor that sought to force governments to reduce greenhouse gas emissions.
The Swiss case, nonetheless, sets a legal precedent in the Council of Europe’s 46 member states against which future lawsuits will be judged, AP says.
The case is expected to have a “ripple effect in Europe and beyond, likely setting precedent for how courts deal with climate cases,” Al Jazeera headlines.
“This is a turning point,” said Corina Heri, an expert in climate change litigation at the University of Zurich.
Although activists have had success with lawsuits in domestic proceedings, this was the first time an international court ruled on climate change—and the first decision confirming that countries have an obligation to protect people from its effects, according to Heri.
She said it would open the door to more legal challenges in the countries that are members of the Council of Europe, which includes the 27 EU nations as well as many others from Britain to Turkey.
The court—which is unrelated to the European Union—ruled that Switzerland “had failed to comply with its duties” to combat climate change and meet emissions targets.
That was a violation of the women’s rights, the court said, noting that the European Convention on Human Rights guarantees people “effective protection by the state authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life.”
Senior Women for Climate Protection, whose members’ average age is 74, had argued that they were particularly affected because older women are most vulnerable to the extreme heat that is becoming more frequent.
“The court recognized our fundamental right to a healthy climate and to have our country do what it failed to do until now: that is to say, taking ambitious measures to protect our health and protect the future of all,” said Anne Mahrer, a member of the group.
Switzerland said it would study the decision to see what steps would be needed. “We have to, in good faith, implement and execute the judgment,” Alain Chablais, who represented the country at last year’s hearings, told The Associated Press.
The ruling followed a recent finding by India’s Supreme Court that climate change has an impact on the constitutional guarantee of a right to life, the Hindustan Times reported Monday.
“Without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realized,” wrote Chief Justice Dhananjaya Y Chandrachud. “The right to health (which is a part of the right to life under Article 21) is impacted due to factors such as air pollution, shifts in vector-borne diseases, rising temperatures, droughts, shortages in food supplies due to crop failure, storms, and flooding… From these, it emerges that there is a right to be free from the adverse effects of climate change.”
In Europe, Judge Siofra O’Leary, the ECHR’s president, stressed that it would be up to governments to decide how to approach climate change obligations—and experts noted that was a limit of the ruling, AP writes.
“The European Court of Human Rights stopped short of ordering the Swiss government to take any specific action, underscoring that relief from the Swiss government ‘necessarily depends on democratic decision-making’ to enact the laws necessary to impose such a remedy,” said Richard Lazarus, a professor at Harvard Law School who specializes in environmental and natural resources law.
European climate groups hailed the news, Clean Energy Wire reports. Environmental Action Germany (DUH) managing director Jürgen Resch said the ruling “is a breakthrough for climate action and shows that also our own lawsuit that was submitted in 2022 at the ECHR has a chance to succeed.”
That case, brought on similar grounds by nine German youth, had been on hold pending the ECHR decision, CER says, even though new analysis shows Germany exceeding its available carbon budget to hold emissions to 1.5°C above pre-industrial levels. “The insufficient Climate Action Law (in Germany) continues to threaten the freedom and livelihood of young litigants and future generations,” Resch said. “This is unacceptable and runs counter to human rights.”
The Swiss ruling softened the blow for those who lost their own cases Tuesday, AP writes.
“The most important thing is that the court has said in the Swiss women’s case that governments must cut their emissions more to protect human rights,” said 19-year-old Sofia Oliveira, one of the Portuguese plaintiffs. “Their win is a win for us, too, and a win for everyone!”
Activists have argued that many governments have not grasped the gravity of the climate change, and are increasingly looking to the courts to force them to do more to ensure global warming is held to 1.5°C, in line with the goals of the Paris climate agreement.
A judge in Montana ruled last year that state agencies were violating the constitutional right to a clean environment by allowing fossil fuel development, a first-of-its-kind trial in the U.S. that added to a small number of similar legal decisions around the world.
As part of trying to meet climate goals, the European Union, which doesn’t include Switzerland, currently has a target to be climate-neutral by 2050. Despite those efforts, the Earth shattered global annual heat records in 2023 and flirted with the world’s agreed-upon warming threshold, Copernicus, a European climate agency, said in January.
Fridays for Future founder Greta Thunberg was in the courtroom as the decision was announced. “These rulings are a call to action,” she told the AP. “They underscore the importance of taking our national governments to court.”
“The first ruling by an international human rights court on the inadequacy of states’ climate action leaves no doubt,” said Joie Chowdhury, senior attorney with the Washington, DC-based Center for International Environmental Law, “the climate crisis is a human rights crisis.”
International coverage by The Associated Press was republished by The Canadian Press on April 9, 2024.
