Episode 10 - What has the ECHR decided about climate change, with Judge Helen Keller

Interview with Judge Hellen Keller

Intro

[00:00:00] Dr Miranda Melcher: Hello and welcome to Just Access. In this podcast series, we talk to some fascinating people, including legal experts, academics, and human rights advocates from all walks of life. Through these conversations, we explore ideas about the future of human rights and improving access to justice for all. Our goal is to educate the wider public and raise awareness about human rights. After all, our motto is, everyone can be a human rights defender. 

[00:00:29] Today we have an extra special interview about the just decided European Court of Human Rights cases on climate change. We have an incredible expert with us to help us understand these decisions that came out just a few hours ago by the time of the recording.

[00:00:45] These decisions were regarding three cases that went before the European Court of Human Rights. To ground the discussion that follows, here is some brief background about the three cases. The Swiss case concerned a complaint by four women and a Swiss [00:01:00] association called the Senior Women for Climate Protection, whose average age is 74.

[00:01:04] And together they argue that older women's rights are especially infringed upon because they are the most affected by the extreme heat that is becoming more frequent due to global warming. They've argued that the Swiss authorities are not taking sufficient action to mitigate the effects of climate change.

[00:01:21] The French case concerned a complaint by a former inhabitant and mayor of a small town in northern France, who argued that France has taken insufficient steps to prevent global warming and that this failure is a violation of the right to life and the right to respect for private and family life, both crucial aspects for the European Court of Human Rights.

[00:01:42] Finally, the Portuguese case was brought by six young people from Portugal against 33 European governments, including all members of the EU and a few in addition. The plaintiffs were aged between 11 and 24 and argued that the impacts of climate change in Portugal, including devastating [00:02:00] forest fires, life threatening heat waves, Directly infringe upon their right to life and respect for private and family life, especially highlighting that their generation is disproportionately vulnerable to the most severe effects of climate change.

[00:02:15] These are the three cases that we are discussing in our conversation with our wonderful guest. 

[00:02:26] Judge Professor Helen Keller is Chair of International and Public Law at the University of Zurich, and a member of the Bosnian Constitutional Court. Crucially for our discussion today, she was also formerly a judge on the European Court of Human Rights. She currently leads a project at the University of Zurich on climate rights and remedies, and in fact has a pretty big conference on the topic coming up this week, and is herself both Swiss and based in Switzerland.

[00:02:55] These are all relevant for what we're discussing today, And really, this makes it so [00:03:00] clear that we could not have a better person to help us understand these monumental decisions from the court. Thank you so much for being here.

Interview

[00:03:07] Professor Helen Keller: It's a real honor and a pleasure to speak about the case just after the next day when the court decided it. I think it's a landmark decision and I'm very proud as a former judge of my former court that the judges were courageous enough to hand down such an important judgment.

[00:03:30] Dr Miranda Melcher: That has set us up beautifully, but before we get into the details of the judgment, can you tell us a bit about what was the court deciding on?

[00:03:40] Professor Helen Keller: The court had several cases: the Duarte Agostinho's case, the Portuguese children and youngsters, and Carême , the mayor of Grande‑Synthe, this is a city near, very close to Dunkirk, and the KlimaSeniorinnen. And [00:04:00] important is for the Clima Senhorinem case that there are different applicants. There are the individuals, four elderly Swiss ladies and there is an association behind them.

[00:04:13] And the association, I think this is the really important aspect of the decisions handed down yesterday, the court for not the very first time, it's a grand chamber judgment and the court said in this grand chamber judgment, this association has standing. So the legal right to bring those claims. The court at the same time continued to say the individuals did not fulfill the requirements of being a victim.

[00:04:48] The court is very strict on that, which was also an aspect in Carême v. France, but the important thing is that the court held [00:05:00] the association has the right under certain conditions to bring such claims and the court went on to say, we declare it admissible and we find a violation in respect of Article 6 and Article 8.

[00:05:17] And 6 is access to court, which is crucial because this will be a new standard for many associations in all over Europe to bring cases. And you have now access to courts, to national courts, and the courts have a legal obligation to go into details if such claims arrive there and if not the association can go to Strasbourg and to enforce such a right and the court also decided that Article 8 is violated.

[00:05:51] That means the courts said the association put some important questions about the legislative measures that Switzerland [00:06:00] has accepted and the court in Switzerland did not answer that. And then the court went into that questions and responded to the question itself and said Switzerland did not do enough to combat climate change in Switzerland.

[00:06:19] Dr Miranda Melcher: That's obviously a bunch of key things that I'm probably going to ask you to tell us a bit about in more detail, but before we get there you mentioned three cases. Why were these three cases being decided together?

[00:06:31] Professor Helen Keller: I think that was a technical issue. You have to understand that the court is divided in several sections. There are five sections and simultaneously different cases arise in different sections. And the court was aware that several core issues basic questions will arrive and that it is better to coordinate that so to [00:07:00] put those three cases together in order to answer victim status, jurisdiction, exhaustion of local remedies. So they put that together and technically those three cases are three different proceedings, but they were decided by the same grand chamber.

[00:07:24] Dr Miranda Melcher: Got it. Okay, that's very helpful to understand the inner workings of how we got here. Focusing then on the Swiss case, we're often used to thinking of the Swiss government as maybe one of the good guys on climate, if that even exists, a part of the environmental integrity group, a group of states that push for higher climate ambitions.

[00:07:44] How did it end up on the other side of a court case like this?

[00:07:49] Professor Helen Keller: Switzerland is a very democratic country and has a problem because in a referendum the climate law was twice [00:08:00] rejected. There is a push in the parliament. But then if right wing politicians bring this law to a referendum and the population does not accept it, then it is obviously a problem.

[00:08:16] And I think Switzerland, the government, actually faced exactly that problem in front of the court.

[00:08:24] Dr Miranda Melcher: Yeah, no, that's helpful to understand. Often from the outside, we might have one perspective, but those details are crucial. So now that we know better how the cases got to this point and what was in front of the court, how did the court rule?

[00:08:38] Professor Helen Keller: For the Portuguese case, this might be disappointing for the applicants, but this was rejected on a very crucial issue and the issue is jurisdiction. Jurisdiction is really difficult to understand, but to put it simply, the question is, do you have between [00:09:00] a state and a measure somewhere in Europe, a link that is strong enough that you can bring this case to the Strasbourg court.

[00:09:12] So can the Portuguese children say what the Polish government is doing in Poland affects us really in Portugal because normally all the cases is, you know, you have a measure in Portugal, you bring that to the Portuguese courts, and then you go to Strasbourg. Neither of that has been done by the Portuguese youngsters.

[00:09:35] They said we don't have the means, we don't have the time, we just go directly to the court. And the court refused that completely and said climate change as a fact does not justify that the court will change its case law on jurisdiction. So normally you only can challenge things that happen on your [00:10:00] territory, not outside.

[00:10:01] So this was rejected mainly for jurisdictional reasons. For Portugal, the court said they did not exhaust any remedies, so inadmissible for that. And for Carême, the French case, the court said it is inadmissible because Carême is not anymore a direct victim and this might link us also to the Krimaseniorinnen.

[00:10:26] The court has a longstanding case law that you have to be affected directly and this has to be, you know present, so it does not help you too much if it was in the past or in the future .This is the general rule. And the court applied this once again in a rather strict way and said all these individuals, also the Klimaseniorinnen, did not show that they are affected more than the [00:11:00] general population.

[00:11:01] And this is important because the Klimaseniorinnen tried to argue that they are affected more than the rest of the Swiss population. And indeed, if you look at the statistics, in very hot summers, where you have temperatures of 35 degrees during the day, and, 22, 25 degrees during the night, the elderly women have a much higher mortality rate and therefore a higher risk of suffering and dying during this period.

[00:11:37] But the court said the statistical data alone, even combined with medical issues that women already have is not enough. They are not more affected than anybody else in the Swiss population. This is rather harsh, I would say. Tough [00:12:00] on victim status.

[00:12:02] Dr Miranda Melcher: In fact, I'd like to ask a bit more about that because the court's ruling specifically talked about that there was a violation to the right of health, if I understand it correctly, but not of a violation of the right to life. Can you explain what the reasoning is here? And is this what you mean by a very strict application?

[00:12:21] Professor Helen Keller: No, victim status is a question on admissibility. So if you have no victim status, the case will be declared inadmissible. The other thing is whether you can argue with Article 2, right of life, or Article 8, right to privacy, right to health. For 8, it is relatively easy to say the measure falls in the ambit of 8, because this is a broad protection, a very broad human rights guarantee. For article two right to life, you always have a [00:13:00] high threshold.

[00:13:02] So if you want to be in the ambit of article 2, you have to reach this threshold. And the court said clearly, a higher mortality risk on statistics is not enough that you reach article 2. To give you an example, if you have environmental cases and you live very close to, a waste managing whatever.

[00:13:30] So normally this would not be an Article 2 issue. You might smell sometimes that it is not pleasant. But if this waste management thing explodes, and you have people that are injured or even died, then you have the threshold of Article 2, and then it falls in the ambit of Article 2.

[00:13:56] Dr Miranda Melcher: Got it. Okay that's a very helpful clarification. You've mentioned a few [00:14:00] things so far that kind of hint at aspects of this decision being a surprise. I wonder if we can go into that in more detail. When you read the judgment yesterday afternoon, what jumped out at you that maybe you weren't expecting either there or things that you thought were going to be there but weren't or how it was discussed?

[00:14:19] What jumped out at you yesterday?

[00:14:21] Professor Helen Keller: I think the Judgment is so important because the court makes a clear link between A, the European Convention on Human Rights, together with B, the Paris Agreement, and together C, with the Aarhus Convention. And there is also a long standing case law on that the convention has to be interpreted in the light of other international instruments.

[00:14:53] And this is the first time where the court made this link to very important [00:15:00] environmental and climate international instrument. The Paris Agreement and the Aarhus Convention. The Aarhus Convention was crucial for the court to accept this broader standing for associations and NGOs. The Aarhus Convention guarantees for the public access to information and access to court.

[00:15:25] This is a very important international instrument because very often individuals do not care about environmental issues as long as they are not personally affected, they think it's okay, we will profit if we have a new building or a new whatever, and therefore associations and NGOs are so important because they pick up the public interest, they go for, we want to protect the common good, and therefore they have a [00:16:00] strong function in the society.

[00:16:03] This is the part on Arhus Convention and this helped the court to broaden the legitimacy, the standing for NGOs. The other thing is the court made this link between the European Convention on Human Rights and the Paris Agreement. Although the Paris Agreement is not binding directly on how much the states should reduce CO2.

[00:16:31] The court said there is a strong link between those two international instruments and there is a right under the convention which the court would enforce, if human rights are affected, if article 8 is affected. And this is the revolutionary aspect or those two aspects are revolutionary in this judgment.

[00:16:57] Dr Miranda Melcher: Very interesting to understand taking [00:17:00] us back to yesterday when you read this, what were you thinking. Aspects that jumped out at our team that I'd love to ask you about is we noticed that many of the points were decided either unanimously or very close to unanimously. Did this surprise you?

[00:17:16] Professor Helen Keller: Yes it's rather rare that you have a new issue and 17 judges, and you have progressive judges, you have activist judges, we have conservative judges, and that they were so unanimous. That's great. And that's also great for the legitimacy of this judgment and the impact. If you have a nine to eight judgment, you would think, oh, I have to read this separate opinions, and there was a big struggle.

[00:17:47] But no, they go ahead with in many points. unanimously and in some others 16 to 1. So that gives really some [00:18:00] good weight to the case.

[00:18:01] Dr Miranda Melcher: Yes, that really, we really noticed that one reading it through. So, interesting to have that insight from your side. Another thing that we were curious about your perspective on is, as you mentioned earlier, especially with reference to the Portuguese case, the court has very specific rules around jurisdiction, especially when it comes to territory and how borders are treated.

[00:18:22] And yet there is a section of this. decision, paragraph 287, I believe, that does talk about extraterritorial emissions being within the scope of the complaint. Can you walk us through that?

[00:18:37] Professor Helen Keller: I think the court wanted to have an easy way out on the question of embedded emissions. I think the court didn't want to go into that because it is very difficult to count how much CO2 direct and indirect at the court, I think, just wanted to [00:19:00] skip this discussion and said it's not important.

[00:19:02] No, even if the CO2 emissions are embedded, as long as the products are in Switzerland, it's territorial and we go ahead. That's my reading.

[00:19:13] Dr Miranda Melcher: No, that's helpful to understand. So thank you for giving us your reading. The final thing that I wanted to ask in terms of surprises is about the drop in the ocean argument. This has come up in some instances before and hasn't necessarily always gone so well at court. So can you tell us about what this argument is and how the court treated it in this case?

[00:19:35] Professor Helen Keller: Yeah, the drop on the ocean argument is: oh, Switzerland is so small that even if we would reduce CO2 much more, this would not help to resolve the climate change crisis globally. And here we have now, I think, an established line of cases going back to [00:20:00] Urgenda, where the Dutch Supreme Court said we do not accept this, to the Klimabeschluss of the German Bundesverfassungsgericht, where all these highest courts say this is not an argument that we accept.

[00:20:16] And the court goes even to its own case law and said we have an established case law in other areas where several states are responsible for a human rights violation and the court constantly said each state bears its share of responsibility and the court applies that, rejects this argument, drop in the ocean, and makes a little trick with Article 1, once again, jurisdiction, and said whatever you can do in your jurisdiction, you have to do, and you have no excuse with the argument, oh, it's only a drop in the ocean.

[00:20:58] Dr Miranda Melcher: That's very interesting to [00:21:00] understand given how much that kind of argument could be used by other countries as well ,that's not a Swiss specific aspect.

[00:21:07] Professor Helen Keller: Not at all.

[00:21:08] Dr Miranda Melcher: Yeah. Speaking then of in some senses, the Swiss specific side of things before we expand broader, what are the impacts, especially the immediate impacts of this decision?

[00:21:19] Professor Helen Keller: I think here we have a little bit to distinguish. I think officially the court, when it comes to article 46 general measures, was very cautious and said we don't order general measures, Switzerland has a margin of appreciation and will decide which measure, what time frame, and Switzerland, the government, has to present that to the committee of ministers.

[00:21:47] There is a clear separation of powers between the Committee of Ministers and the Court. But if you go not to Article 46, but to [00:22:00] Article 8, there I think the Court applied a technique that it uses also in other cases. I take the example of expulsion of foreigners. There is a famous case, a leading case, Maslow versus Austria, where the courts are well, of course, a country can examine and can control the entry of foreigners, but as soon as a foreigner has been long in a country, has family ties, then even if this person has committed a criminal act, there are certain aspects if you want to expel that person.

[00:22:43] You have to go through a catalogue of criteria: how long has the person been there, what are the links in the other countries, how grave was the criminal act, and so forth. And the court does the same thing [00:23:00] for the article eight and it is paragraph 550 where the court says there are here certain criterias and please Switzerland, if you go to the committee of ministers, go through these criteria and show that the Committee of Ministers your thoughts on that, your attitude, what you're willing to do.

[00:23:25] So the court tries to give some guidance, not on Article 46, there the court was very cautious, but on Article 8. And I think this is a crucial paragraph 550.

[00:23:41] Dr Miranda Melcher: All Right. Good to know exactly what to look for. I guess, I wonder about that, the idea of the guidance, but didn't go that far. Why didn't the court say, Switzerland, you must do X, Y, Z?

[00:23:53] Professor Helen Keller: I think the court was very cautious that the reaction in Switzerland will be, oh, [00:24:00] those foreign judges. This is a very strong notion in Switzerland. This is our prerogative, our sovereignty and in particular, it's our democratic process of deciding and it's not up to the court to interfere with that.

[00:24:19] So the court was very cautious in saying, we accept that, and of course, it is primarily up to the member states to define their measures in particular to the government and the legislative body. But what comes through, the exhaustion of national remedies to the court, then these decisions are complimentary and those decisions should be an insight for the parliament, for the government to take action and to take climate action more seriously than they did.[00:25:00] 

[00:25:00] Dr Miranda Melcher: Expanding out our discussion about the implications and potential impact of this case, how do you think other states might respond or perhaps should respond?

[00:25:13] Professor Helen Keller: I think the most important message from that judgment is that there is a human rights, a right connected to climate change and to combat climate change, the negative aspects, that this will be inspiring for many constitutional courts all over Europe and probably internationally and the second thing is that this judgment in Carême Seniorinnen will be important because the national courts have to take associations and NGOs very seriously if they bring [00:26:00] their claims before the national courts.

[00:26:03] And I think it was a strategic decision of the European Court of Human Rights to say it is much to the national courts to decide those cases and the national courts have to do their job in order that those cases do not come, all directly to the European Court of Human Rights. So it's a separation of tasks between the national level and the European level.

[00:26:33] Dr Miranda Melcher: No, that's helpful to understand. You've spoken so far in our discussion about this, that the definition of victim has remained very tight. What sort of implications do you think that will have going forward with climate change litigation? Is this going to remain a viable definition to stay so tight, given how climate change is impacting the world?

[00:26:56] Is this going to be used as precedent in the future, do you [00:27:00] think?

[00:27:00] Professor Helen Keller: The member states, of course, are free to go beyond the standard of the European Court of Human Rights. The court only said this is the standard on Article 34, on the victim status, their notion of victim status under the convention. States are free to go to say we have a broader notion and we accept more victims in climate litigation than the European Court of Human Rights.

[00:27:34] But I think for the court, the court made a strategic decision to say, we want to keep individuals coming to a selected small number, but we allow more complaints coming from associations and NGOs. So the bundled approach is more favorable for the court than [00:28:00] individuals.

[00:28:00] Dr Miranda Melcher: Okay. Yeah, that makes sense. I asked just now about a very narrow definition. I want to turn to asking about something that seems to have expanded in this decision, the living instrument doctrine. Looks like it has opened up or been used as a way to change some of what the court maybe is used to doing.

[00:28:18] Is this something that could continue to happen in future cases, further expansions?

[00:28:24] Professor Helen Keller: I thought when I read the judgment that the living instrument doctrine is very much used as it is used in other areas. I thought that the court tries to make a distinction between Environmental cases, there we have something like 350 -80 cases and an established case law, but the court said we cannot take the case law on environmental measures and apply them strictly to climate related matters for the purpose of proofs for the purpose of [00:29:00] causality.

[00:29:00] The climate cases are much more. complex, difficult, and therefore it is not what we have done in the environmental cases, we simply can do it in climate cases. And for that, the court referred to this living instrument doctrine, but it has done so in many other areas. Think of artificial intelligence, or Data protection.

[00:29:28] Data protection was something completely different 50 years ago than now. And the court uses this argument of living instrument in order to catch up with the development, the threats, the new threats, the modernity of the threats in human rights issues.

[00:29:47] Dr Miranda Melcher: No, that's very good to put into that wider context. One thing we haven't talked about is attribution. Presumably the court didn't forget about it? What's going on with the kind of [00:30:00] lack of discussion about attribution here, do you think?

[00:30:03] Professor Helen Keller: The court referred a little bit when they rejected the argument of the drop of the ocean and said well, you are responsible, you as a state, on what is going on your territory. But I think the court is cautious to go further than that at the moment. But I think this is a first leading case and certainly not the last.

[00:30:29] It will go on and case law in climate cases will become more sophisticated in the future.

[00:30:36] Dr Miranda Melcher: Speaking of the future what are some of the kind of key precedents that you think this will set, maybe not just for this court, but if we are going to speak internationally, what are the things that seem to rise to the top of the list of precedents setting for you?

[00:30:54] Professor Helen Keller: The link between human rights and the Paris Agreement, [00:31:00] this is, you know, the groundbreaking first point of this judgment, and the second is really the role of the associations and NGOs. I think this will be a push worldwide for associations and NGOs to bring more cases, not only in Europe, but in many other countries, and it's an important judgment because it gives hope that those associations and NGOs can be successful before national and international courts. However, I think there is, I would say, a bitter pill, if you look at the very end of the judgment, and the bitter pill is financially.

[00:31:48] The KlimaSeniorinnen asked for something like 3 20, 000 Swiss francs for all the costs in the proceedings nationally, [00:32:00] and then before the European Court of Human Rights. And I have no doubt that they spent a this money. They had a wonderful team of lawyers. They worked tremendously for this case.

[00:32:13] However, the court granted only 80, 000 euros, which is something like 75, 000 Swiss francs. So you have a huge difference between what the association asked for and what the court was ready to grant. So the difference is on the shoulders of the association. That means very small associations will never ever have the possibility to reach the court because this financial risk is so huge that it would kill a small association.

[00:32:56] So for the purpose of strategic litigation, you [00:33:00] really need a powerful association, or in this case you had an association and behind a powerful NGO, Greenpeace, which helped to finance the whole thing. Otherwise it would not be possible. And this is also, for the future, if those proceedings for the protection of common good are so costly we probably have to find another way how we distribute the costs of such proceedings because the proceedings might be really successful and to the benefit of all of us, but someone has to finance it.

[00:33:47] Dr Miranda Melcher: So that has very clear implications to me listening to this about how future cases in general will have to think about, as you said, the strategic side, the organizational side, the financial side. [00:34:00] Do you think this also has implications for kind of the content of the cases or the types of cases that will be able to go forward?

[00:34:08] Professor Helen Keller: Yes, indeed. I think we will have now a second wave of cases where we have more specific case law on what the obligations are on the Article 8, mitigation, adaptation, how quick, and then I think there will be a third wave of cases concerning damages. And this will be important because we will face a lot of environmental damages caused by climate change. And it is so difficult to say exactly how much money the environment is worth. And it will be a real challenge for the courts to give exact numbers for these [00:35:00] damages. Here I think it's also a task of the science of my discipline now to give guidance how the courts can deal with those important questions.

[00:35:15] Dr Miranda Melcher: That makes rather a lot of sense. If we take all of those kind of big picture ideas of what the future of these, as you said, the waves might look like, from your position with such expertise, are there particular cases or courts you think we might want to watch out for, especially as where those might go?

[00:35:35] Professor Helen Keller: Yeah, I think one of the big areas will be climate related claims against the big CO2 emitters. So not against a state, but a big transnational company like Holcim, like Shell. And I think as soon as we have [00:36:00] at the end of those proceeding a huge amount for damages, then those large CO2 emitters will change their strategy.

[00:36:14] Dr Miranda Melcher: That could be very interesting. You've obviously given us a massive amount of insight, which is incredibly helpful. For any listeners who want to continue to follow what happens in these cases specifically, or kind of the work of the court or this sort of strategic litigation around climate, do you have any sort of recommendations of how people can best follow along on these sorts of things?

[00:36:37] Professor Helen Keller: I can recommend our site, Climate Rights and Remedies. We have a map where you can search for climate proceedings all over the world. We already have a summary of the judgments of yesterday at least for Carême and the portuguese case and we're still working on KlimaSeniorinnen, [00:37:00] but it will be out today.

[00:37:02] So we try to be very updated. Two days ago, for example, the Indian Supreme Court held that there is a right to a healthy environment and that is very much connected to climate change. We are there and we try to be very updated and informative.

[00:37:26] Dr Miranda Melcher: Brilliant. That is incredibly helpful to know about that resource, and of course to have had the opportunity to speak with you and get your insights literally the day after these came out. Is there anything else before I let you go and don't take up any more of your time? Is there anything else about what happened yesterday that you want to make sure we mention?

[00:37:45] Professor Helen Keller: Maybe we should say thank you to the elderly ladies. It's not, normal, it's extraordinary that they did that for 10 years and that they had time [00:38:00] enough, energy enough not to give up. So I want to thank the elderly ladies from Switzerland.

[00:38:08] Dr Miranda Melcher: Brilliant. I definitely add my thanks as well, and I'm sure our listeners will too.

Outro

[00:38:13] Thank you so much for speaking with us and sharing your time and insight, especially so quickly after the decisions have been released. To listeners, thank you so much for being with us. In our next episode, we will continue this conversation and talk about the wider impacts, the implications, what climate litigation might look like after these decisions.

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