In April 2024, the European Court of Human Rights issued a ground breaking ruling establishing protection from the effects of climate change as a human right under European law. The opinion, directed at Switzerland, was quickly praised by climate activists, but met with immediate resistance that threatened the stability of the underlying treaty. Now, the issue of immigration and border security has escalated the conflict, with national leaders threatening to renegotiation or exit the Convention.
In 1950, the Council of Europe adopted the European Convention of Human Rights, an international treaty drafted to protect human rights and liberties. Although sometimes confused with the European Union, and its Council of the European Union, the CoE is an independent entity with more member states.
As is standard in international treaties, an enforcement mechanism must be established to allow for legal challenges. Section II of the Convention called for a European Court of Human Rights. The ECtHR, also known as the Strastbourg Court, rules on individual or State applications alleging violations of the civil and political rights set out in the Convention.
The Court has issued over 10,000 opinions on a wide range of human rights issues relating to the Convention. In April 2024, it got the attention of the climate change community when it issued a ruling in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland that stated that protection from the effects of climate change is a human right under the Convention.
Specifically, the Court pointed to Articles 2 (Right to life), 6, (Right to a fair trial), and 8 (Right to respect for private and family life). However, no language in the treaty discusses climate change, causing opponents to criticize the Court of overreach and misinterpretation of the law.
Initially, the Swiss Parliament voted to reject the ruling. The Swiss Federal Council chose to respond to the ruling, but objected to the interpretation, stating “the Federal Council criticises the ECHR’s broad interpretation by the ECHR in the ruling on Verein KlimaSeniorinnen. The case law must not lead to an extension of the scope of the ECHR.”
While the case opens to the door for a new wave of climate change litigation before the ECtHR, the limited applicability tapered wider reaction. However, recent actions by the court on relating to immigration has stirred up broader dissent.
According to the Telegraph, Tories in England are prepared to quit the Convention, echoing similar concerns from the Labour Party. British Prime Minister Nigel Farage has stated that withdrawing from the ECHR may be the only way to solve the country’s immigration crisis. This comes days after nine national leaders from throughout Europe issued a letter questioning the Court’s interpretation of the Convention.
The letter stated, “as leaders, we also believe that there is a need to look at how the European Court of Human Rights has developed its interpretation of the European Convention on Human Rights. Whether the Court, in some cases, has extended the scope of the Convention too far as compared with the original intentions behind the Convention, thus shifting the balance between the interests which should be protected.
“We believe that the development in the Court’s interpretation has, in some cases, limited our ability to make political decisions in our own democracies. And thereby affected how we as leaders can protect our democratic societies and our populations against the challenges facing us in the world today…
“We want to use our democratic mandate to launch a new and open minded conversation about the interpretation of the European Convention on Human Rights. We have to restore the right balance. And our countries will cooperate to further this ambition.”
The letter was signed by Mette Frederisen, Prime Minister of Denmark; Giorgia Meloni, Prime Minister of Italy; Christian Stocker, Chancellor of Austria; Bart De Wever, Prime Minister of Belgium; Petr Fiala, Prime Minister of the Czech Republic; Kristen Michal, Prime Minister of Estonia; Evika Siliņa, Prime Minister of Latvia; Gitanas Nausėda, President of Lithuania; and Donald Tusk, Prime Minister of Poland.
While the letter is directly addressing immigration issues, it indicates the broader discontent with the ECtHR’s recent rulings that go beyond the text of the Convention. If countries exit the treaty, the gains made by climate activists to establish climate change as a human right will face significant setbacks. However, the real threat is that the members convene and demand a strict interpretation of the Convention, with clarifying language that limits the impact.
The reaction to the rulings could also serve as a warning to the International Court of Justice. The ICJ, known as the World Court, is an international court established to handle civil disputes between nations. The International Criminal Court addresses criminal matters. Both the ICC and the ICJ have faced criticism over recent rulings.
In March 2023, the United Nations General Assembly requested the ICJ to issue an advisory opinion on the legal obligations of countries in preventing climate change. The opinion, Obligations of States in respect of Climate Change, while non-binding, will give an indicator of how the court may interpret future climate related litigation and guide future legislative development. That opinion will most likely not be released until the end of 2025 or 2026.
The written and oral statements before the ICJ relied heavily on the ECtHR Verein KlimaSeniorinnen opinion. If the integrity of the ECtHR’s interpretation of Convention is compromised, then the ICJ may choose to ignore the ruling.
The political backlash against the ECtHR may also have a chilling effect on the ICJ’s opinion. International treaties are only as strong as the commitment by the signing countries. As is evident in the current debate over the ECHR, countries may chose to leave at any time if the application of the treaty no longer aligns with their priorities. We saw this in action when President Trump exited the Paris Agreement on his first day in office. If the ICJ issues an opinion that creates a legal obligation to prevent climate change, countries may choose to exit the relevant treaties rather than risk litigation.
No political or legal developments occur in a vacuum. The debate of the future of the European Convention on Human Rights and the ECtHR’s rulings on immigration will have broader repercussions. The aggressive reinterpretation of international treaties to insert climate change when specific language does not exist may provide an immediate legal victory, but threatens to undermine international agreements. Climate change advocates may find that short term gains have long term political consequences.
Read the full article here
