VICTORY FOR THE ELDERLY CLIMATE LADIES: FOR THE EUROPEAN COURT IN STRASBOURG, CLIMATE INACTION VIOLATES HUMAN RIGHTS

On 6 March, almost three years after it was launched, the first instance of the first lawsuit in Italy against the state for inaction on the climate crisis came to an end. The Civil Court of Rome declared the 'Giudizio Universale' (Universal Judgment), brought by 24 associations, 179 individuals and the legal team of the 'Legality for the Climate' network, inadmissible for 'absolute lack of jurisdiction', in the sense that, according to the judge in Rome, there are no courts in Italy that can rule on this issue, because the issue of the climate emergency, which the Court recognises as a crucial issue, would invest an area that is removed from the judiciary, as an expression of political activity, and as such is 'indefeasible' by the judiciary. And this inviolability goes beyond our membership of the European Union, the numerous climate laws adopted and binding on Italy, and the EU Charter of Fundamental Rights, which do not apply to Roman judges. 

In the light of this disturbing decision, the ruling by the Grand Chamber of the European Court of Human Rights in Strasbourg on 9 April against Switzerland and in favour of the association 'Older Ladies for the Climate' (Verein KlimaSeniorinnen Schweiz), which brings together 2,500 women over the age of 65, takes on a special value for our country precisely because of the arguments put forward in support of the decision.

With this ruling, the Court recognises for the first time that inaction on climate change is a violation of human rights. The only dissenter was British judge Tim Eicke, who had already said in 2021 that the ECHR was not designed for environmental cases. He said the ruling would not make a real difference to the fight against climate change and that the other judges had "given (false) hope that litigation and the courts can provide the answer". The Grand Chamber is the body of the Court responsible for deciding the most serious and groundbreaking cases, and its decisions are binding on Council of Europe member states and cannot be appealed. The appellants based their appeal on the fact that elderly people are particularly vulnerable to extreme weather events and asked that Switzerland be ordered to do much more to help keep the global temperature increase below 1.5°C, the global target.

The Swiss government, for its part, while agreeing that rising temperatures damage people's health, argued before the Court that the climate elderly should not be treated as "victims" under Article 34 of the Convention because the link between its actions and their suffering was "too tenuous and remote"; indeed, since many of the plaintiffs are over 80 years old and some have even died during the course of the case, it is unlikely that they will still be alive (!) if and when temperatures rise above 1.5°C. Instead, the Court, which is responsible for interpreting the Convention on Human Rights, found that Switzerland had violated Article 8 of the Convention, which includes the right of individuals to effective protection by public authorities against the serious adverse effects of climate change on their life, health, well-being and quality of life. Switzerland also violated Article 6 on access to justice by rejecting the association's appeal on "insufficient" grounds.

Furthermore, in what could be an indirect response to the reasons given by the Court of Rome for its decision against the Universal Judgement case, the Court considers that although "measures to combat climate change and its adverse effects require legislative action both in terms of the policy framework and in various sectoral areas" and that "such action necessarily depends on a democratic decision-making process", there is clear scope for action by the courts since "the mandate of the national courts and of this Court is complementary to those democratic processes".

On the same occasion, the Grand Chamber also declared inadmissible three other appeals on the same subject involving two other countries: France, accused by the former mayor of Grande-Synthe, now a member of the European Parliament, Damien Carême, and Portugal, accused by six young Portuguese people who had brought an action against no fewer than 32 countries (the 27 Member States of the European Union plus the United Kingdom, Switzerland, Norway, Turkey and Russia). In the French case, the Court based its decision on the fact that the applicant did not have the status of a victim within the meaning of Article 34 of the Convention because he no longer lived in Grande Synthe; in the case of Duarte Agostinho and Others, the Court held that there were no grounds in the Convention for extending the extraterritorial jurisdiction in the way the applicants had requested and that, since the applicants had not pursued their complaints in Portugal, the action was also inadmissible for failure to exhaust domestic remedies. The third application that was rejected was that of four individuals who joined the case of the Association of Elderly Ladies for the Climate because, as in the case of the former French mayor, the conditions to be considered as "victims" according to the criteria of Article 34 of the Convention were not met.
It is then interesting to understand why the Court considered the Elderly Ladies for the Climate's appeal to be admissible, given that there are conditions that limit the possibility of an appeal in any case. The Court explains that "in order to be entitled to act on behalf of individuals and to bring an action against the alleged failure of a State to take appropriate measures to protect them from the adverse effects on their lives and health caused by climate change, an association must, inter alia be legally established in the affected country and be able to demonstrate its willingness to defend the specific rights of its members or other affected individuals in that country; be able to demonstrate that it can be considered "genuinely qualified and representative" to act on behalf of its members or other persons affected by the adverse effects of climate change on their life, health or well-being, as protected by the Convention.
Although this is the first time the European Court of Human Rights has ruled on climate change, there are now a number of countries where judges have issued rulings requiring governments to act more effectively on climate change. The effects have been uneven and proportional to the presence or absence of real political and social pressure on the issue: in the Netherlands, the first country where the judges acted, the government was ordered to reduce emissions by 25% by 2020; in Germany, the appeal led to an amendment of the climate law; in France, the powerful mobilisation of millions of people with the 'Affaire du Siecle' action led to a greater focus on reducing emissions, recognised by the courts themselves but still not enough according to the plaintiffs, and to a very broad public debate that really changed the perception of the importance of climate action. The situation in Italy, as we have seen, is very different, not least because of the cultural backwardness that even part of the judiciary often displays, not only in the case of the 'Giudizio Universale', but also in the 'criminalising' way of dealing with protests and dissent against the government's climate policy. In this sense, the Strasbourg Court's ruling may contribute to a positive evolution of the Italian judiciary, media and politics, as it has already done for many European norms.