Summary
This blog discusses a recent judgment of the European Court of Human Rights (ECtHR), where Switzerland was found in breach of the European Convention on Human Rights (ECHR) for failing to take adequate action on climate issues. It is asserted by many commentators that the judgment is of political nature and the Court is criticized for getting involved with national politics for which it has no mandate. I point out that this kind of criticism is not new in the case of the ECtHR and has persisted for a long time, in particular from right-wing politicians. I do indeed agree, from the point of view of legal argumentation, that the ECtHR is in this judgment very radical and dynamic in its interpretation of the Convention, even one of the most radical in its jurisprudence. However, it is important to keep in mind when the ECtHR is accused of interfering in politics that the Court has not formed or shaped the climate policy of states. Rather they have done it themselves with the politics that is advanced at home and in cooperation of states. A part of that policy is they have promised their citizens to do everything they consider important for the protection of their lives and health allegedly threatened by climate change. By their presentation of the issue politicians have themselves defined the issue as of major importance for the well-being of the public. Under these circumstances, the idea that real human rights are at stake cannot be evaded. Thus, the protection of human rights, which is the task of MDE, is the interaction of legal and political policies on various matters, including climate issues, which are elaborated in international agreements and national laws and regulations that prescribe actions for the protection of the citizens that political powerholders in states themselves consider necessary to protect their life and health. These laws and regulations ultimately form the basis for the idea that citizens have a right to these actions and states have an obligation to respect that right. It is not surprising that the claim follows that citizens should have canals to bring alleged the lack of action of these same states before an independent court to have them asserted. In other words, the judgment presents a certain human rights politics that the ECtHR certainly stands for.
Before proceeding, it is appropriate to reiterate that the author of this post is aware that a number of scientists claim that global warming due to human activities is unsubstantiated, while others are certain that this is the case. I must admit that I don't know enough about the methodology of the scientists who have studied this to be able to say with certainty which group of scientists is right. The main point is that the political policy of the states at home and in international cooperation is formed on the basis of the conviction of the latter group. The ECtHR is not responsible for that.
I
The judgment of the ECtHR in the case Verein KlimaSeniorinnen Schweiz et al. v. Switzerland (Klima judgment) on April 9. has provoked mixed reactions from the contracting states. It deals with climate change (global warming) and the protection of human rights. The legal argumentation in the judgment, in the narrower sense, can be discussed at length. It is up for debate and admittedly it is, for that matter, to some extent difficult to reconcile it with previous jurisprudence of the ECtHR. I will not dwell on this issue in this insertion, but rather on what can be termed as "political" criticism” of the judgment. This criticism is roughly based on the assertion that the judgment is wrong because the ECtHR has gone far beyond its mandate and taken an inherently political decision. By it, the ECtHR has violated the right of self-determination of states and ignored the democratic processes within the respective country. This is not the first time, and certainly not the last, that such criticism has been expressed about individual judgments of the ECtHR states consider politically important for them.
II
The ECtHR was established in 1959 based on Article 19 ECHR to ensure compliance with the commitments made by the parties to the Convention. The Court is composed of the same number of judges as there are Contracting states at any given time (originally 12, now 46). From the beginning, the European Commission on Human Rights also operated, and rules provided for a certain division of powers between the Court and the Commission that will not be discussed in this insertion. The main point is that from the beginning neither the ECtHR nor the Commission operated permanently in the sense that the position of judges or commission members was not full time. Judges (and Commission members for their part) met several times a year and pronounced judgments or made decisions. In 1998 this changed with the closure of the Commission, and now the ECtHR operates permanently and carries out the tasks that the Court on one hand and the Commission on the previously carried out. The position of judges also changed in that being a judge became a full-time position and it was assumed that judges should reside in Strasbourg. To name an example for further clarification Þór Vilhjálmsson before 1998 held the position of judge in respect of Iceland, as a part-time position, but interesting for the subject of this blog is that he was concurrently serving as a judge at the Supreme Court of Iceland and later at the EFTA Court. This did not seem wrong at the time, although it would not be possible nowadays.
III
During the first years of operation, the ECtHR's activities did not draw too much attention, as the cases were initially few and perhaps not particularly politically important for the Member States. There were also far fewer cases than there are now, as there were fewer member states. According to my understanding, criticism of the kind that the Klima judgment has been subjected to did not accelerate until around and shortly after 2000. It was mainly accompanied by the fundamental changes in the composition of the Court and the increase in the number of Contracting States of the Council of Europe after the former communist countries of Central and Eastern Europe as well as Russia became parties to the treaty. Prior to 1998, the Court was composed of individuals who were in fact high-ranking judges at home, high-ranking officials (ambassadors) and occasional law professors. These individuals had close ties to their home state. Judges (and commission members) in Strasbourg were therefore perhaps more connected to the political situation at home and possibly had a stronger awareness of the limits of the Court's powers. Perhaps it can be said that the judges were not as independent as they later became! During this time, two key concepts in the interpretation and application of the treaty, known as the principle of subsidiarity and the margin of appreciation, were further developed, but both concepts relate to drawing boundaries between the powers of the Court on the one hand and the national courts (authorities) of the member states on the other. However, it must be kept in mind that at that time the Court nevertheless issued many judgments that were considered quite radical and forward-looking, such as on corporal punishment in schools, freedom of expression, freedom of association, discrimination between conceived and illegitimate children, use of force by the police, etc. Many of these judgments are still widely cited as fundamental precedents, even though decades have passed since they were handed down.
IV
With the changes to the workings of the Court in 1998, together with fewer possibilities for states to orchestrate the election of judges to the Court by the Parliamentary Assembly of the Council of Europe the ties of judges to their authorities and the politics in their home state was further loosened up. Not only that, but the composition and background of the judges changed and became more diverse, and their relationship with the rulers at home became more distant. At the same time, it has become more common for judges to have a certain background in human rights law, such as academics and practising lawyers. Having these changes in mind one might make the claim the judges have become more independent from the authorities of their home country and thus, indeed, the Court as a whole. Around and after 2000, quite a few judgments were handed down that irritated rulers and judges in many of the larger and more powerful Member States. This, in my humble view, elevated the tone of the debate about the ECtHR, which has persisted ever since, especially among right-wing politicians where the Court is criticized for its creative interpretation of the provisions of the Convention allegedly going far beyond the original meaning of its provisions and sometimes impudently interfering with the democratic processes within their respective State and their sovereign rights. In other words, the judges are accused of being involved in pure politics, which is none of their business! Many decisions of the Court from the first decade of this century can be mentioned which provoked strong reactions from the respective countries. An example of this is the judgment in the case of Hirst v. UK from 2005, where the ECtHR found the complete exclusion of prisoners from participating in general elections contrary to Article 3. Annex 1 to the Convention on the right to free elections. David Cameron, then a Prime Minister of the United Kingdom (now the Foreign Secretary), was noted for his comments during a debate on this judgment, stating that the idea of prisoners getting the right to vote made him sick. This judgment and various other judgments of the Court against the UK in the following years concerning, among other things, the treatment of suspected terrorists, were similarly frowned upon in the UK. Since then, discussions have regularly surfaced in the UK about the country leaving the Convention system and thus the jurisdiction of the Court. Another example is von Hannover v. Germany from 2004, where the ECtHR ruled that the German Constitutional Court failed to protect the privacy of Princess Caroline of Monaco by overriding her alleged privacy. German academics and judges were very upset with the ECtHR for rejecting the arguments of the Constitutional Court and heavily criticized the judgment. Similarly, the ECtHR managed to annoy the French, Russians and others with their judgments in cases that were considered politically important for them and believed that they resolved correctly and properly at home. In the opinion of the author of this insertion, who experienced these at a close distance, this fierce and loud criticism contributed to the fact that with the judgment in for example the case of Scoppola v. Italy (No. 3) from 2012, the ECtHR significantly backed away from the precedent set earlier in the above-mentioned Hirst-judgment from 2005. The same happened in the latter case von Hannover v. Germany (no. 2) also from 2012, which can be interpreted as a departure from the previous judgment. At that time, negotiations had begun to include a special annexe to the Convention provision related to the Court's obligations to respect the principle of subsidiarity and margin of appreciation, cf. annex 15 from 2013. On the part of many powerful countries, including the United Kingdom, this innovation, which was nothing more than a documentation of what the Court had long been accustomed to, was pursued very strongly, and it was obvious that this was aimed at putting some constraints on the Court. Thus, having this in mind, the criticism expressed of the Klima judgment from last April is a continuation of a discourse that started a long time ago and has lasted around 20 years. The essence of this criticism of the Court is mostly still the same, namely that the Court is too creative in the protection of human rights and provides a much richer protection of human rights than it was originally intended to. Now having said that, some might be tempted to conclude that this is the predominant view in most of the Contacting States. This would be wrong because there is another big group, but not quite as loud, on the other side of the booth, which calls for a much more radical and progressive approach of the Court on various issues, such as abortion rights, gay rights, rights of immigrants and asylum seekers etc. Among those are surely people who consider the Klima judgment to be something to celebrate. They would argue that it is precisely the main and most important role of the Court to keep politicians engaged and to ensure that they respect human rights. There is thus discontent with the Court all around, albeit for very different reasons.
V
From what has been stated above it is clear that the Klima-judgment is not the first judgment that has provoked strong reactions from politicians who claim that their democratic right to rule at home has been violated. This does not only apply to politicians in Switzerland who have endured the verdict but also in other countries who see it as a precedent that may later turn against themselves. Be that as it may, the judgment certainly gives reason to wonder if the ECtHR is immersed in politics instead of just judging by the law (the Convention). I think the answer is yes, at least to some extent. I do not mean party politics, but the judge's "political" stance, which assumes that active measures must be found for citizens to test whether states are fulfilling their obligations to reduce the negative effects of climate change on their lives and health. This "human rights politics" mainly manifests itself in the way that the rule of Article 34 (standing) needs to be extended to accommodate the standing of the organization that brought the case before the Court. In this regard, it is pointed out, based on the case law that existed before this judgment was handed down, it was most reasonable to conclude that the case should be dismissed as the organization could not be considered a victim of an alleged violation of Article 8 ECHR, neither as such nor their individual members. This "politics" of the judges is manifested in that it is considered necessary to provide for the possibility that such organizations to put to test by the Court, from a human rights perspective, the legitimacy of the actions of states concerning climate change. For all those who bother to study the judgment, it should be clear that the outcome of the case is based on the opinion of the judges, which can be called political, that the issue is of such a nature and importance that environmental organizations should have a way, both before the ECtHR and domestic courts, to pursue a case against governments when matters relate to their supposed negligence to take urgent measures to protect the lives and health of citizens caused by (alleged) global warming.
VI
One may rightly call this politics. However, this is still only politics to a certain extent. It is important to keep in mind that the ECtHR has not shaped the states' policy in climate matters, and even less has the Court itself engaged in scientific research to assess whether the climate threat is real. The policy of states, at least in Europe, is based on the fact that those scientists are right who believe that human-caused global warming is a real phenomenon that threatens human habitation on Earth. Neither more nor less. The states trust these scientists and have themselves formulated their policies on the assumption that these scientists are right, among other things through agreements with other states, and have defined goals and enacted laws and regulations they consider necessary to protect the life and health of their citizens so seriously threatened by global warming. The individual judge's view and precise understanding of the grounds upon which the judgment rests are most probably different to some extent. I understand it this way: If the politicians who have formulated the climate policy are right that the dangers are so great and real for individuals, is there any scope for the states to pull their feet in implementing urgent and necessary measures? And isn't it also natural that the people who are in such great and immediate danger have the resources to pressure the authorities for action? In other words, with their own understanding and definition of the problem, the states and their rulers have themselves defined the issue in such a way that global warming threatens the life, health and other interests of individuals and justify, among other things, their need to impose more taxes on their citizens to finance allegedly necessary actions. That being the case, it is not particularly far-fetched for the ECtHR to define the problem, at least in part, as a human rights issue on the basis that citizens have the right to insist that the state takes the necessary measures to protect their lives and health. Does the State have a more important role than this? This can be called politics on behalf of the ECtHR, but it is not a politics that will be defined by the words right or left but rather a human rights politics since citizens need to have active means to pressure the state to take measures that the rulers themselves have deemed necessary to protect the lives and health of their citizens. One may wonder if it is too much to ask of the authorities not to postpone measures, they have themselves defined as most urgent and necessary!
VII
My conclusion from these reflections, which of course could be justified in much more detail, is that the judgment of the ECtHR in Klima case is extremely radical and creative in legal terms, and even to a greater extent than I have seen before. To be honest, the decision surprised me. Those who oppose such creative jurisprudence can certainly argue with valid arguments that it is wrong, mainly because it is difficult, if not impossible, to align it with known jurisprudence. However, it is in a sense a logical follow-up on the policy that the contracting states have themselves formulated regarding climate issues and especially the assumptions on which it is based. In that sense, it can be said that the ECtHR quite creative legal arguments, which are obviously aimed at giving the citizens a tool to press for the achievement of political goals that politicians have set for themselves, but then choose to postpone e.g. because the government accounts are not doing so well or influential stakeholders are discontent. It is important to keep in mind when the judgment is criticized for being political that the ECtHR has not formulated this climate policy, but the states have done it themselves. They have promised their citizens to do what they consider necessary to protect their health and life. Under these circumstances, the idea that there are real human rights threats at stake that states cannot deviate from is not far away. Thus, the protection of human rights as a task of the ECtHR is a combination of legal and political policies, which are elaborated in more detail in laws and regulations on the necessary actions for the protection of citizens. These laws and regulations ultimately form the basis for the idea that citizens have the right to these actions and states have an obligation to respect that right and it must be assumed that citizens can pursue before the authorities and an independent court if needed.
The author is a professor of law at the University of Akureyri and a former judge of the ECtHR.