The Right to Be Protected from the Effects of Climate Change

How did we get here?

‘Rights are public goods: Taxpayer funded and government-managed social services designed to improve collective and individual well-being. All rights are positive rights.’

-Stephen Holmes and Cass Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (1999)

Readers may well have heard the news that, yesterday (9th April 2024), the European Court of Human Rights (ECtHR) issued its rulings in the conjoined ‘climate change’ cases of Verein KlimaSeniorinnen Schweiz and Others v Switzerland, Carême v France, and Duarte Agostinho and Others v. Portugal and 32 Others. You will also have heard that in the first of these, the Court - on rather narrow grounds - ruled that there is such a thing as the right to be protected from the ‘serious adverse effects’ of climate change. No doubt you will be able to read commentary here, there and everywhere on the merits of the judgments. I would advise some caution with regard to that sort of thing - as far as I can tell the judgments in Carême and Duarte Agostinho, ruling the applications inadmissable, are not available at the time of writing, and the judgment in Verein KlimaSeniorinnen Schweiz is 260 pages long - too long for anyone to really have properly read and digested it all less than 12 hours after its being handed down.

Nonetheless, these cases were the subject of my previous post, in which I made some (largely accurate, it turns out) predictions, and they relate also to the one before that, so I would like to say a bit more about them - in regard to what they really mean with respect to philosophical and jurisprudential matters. I’ll do that in future posts once I’ve had time to sit down and read the judgment in Verein KlimaSeniorinnen Schweiz. Before, that, though, I thought it might be a good idea to provide readers with a bit of context - because I suspect many of you will be wondering about the most obvious question of all, which is how on Earth we got to the position that the ECtHR could be deciding whether or not there is a right to protection from the effects of climate change. There is no such right in the European Convention on Human Rights (ECHR), nor anything that resembles it, and the people who drafted it couldn’t even have imagined that there ever would be. So how is it that the Court has decided that, in effect, there is?

The answer will take us a long way towards understanding why, regrettably, the self-respecting democracies of Europe are going to have to either seriously reform the entire Council of Europe framework (the umbrella organisation for the ECHR) or disassemble the whole thing. That, though, is obviously a subject to be discussed in more depth another time. Let’s for the moment go back to basics, and elucidate the three things that anyone seeking to understand what is going on in human rights law really needs to know.

The first is that there has always been a tension between people who think of human rights as imposing ‘negative’ or ‘positive’ obligations on the state. Sterotypically in the eyes of most laypeople in Western democracies, human rights imposive ‘negative’ obligations - they make it a duty for the state not to do certain things (such as torture people, imprison them without trial, interfere with their freedom of expression, and so on). But even in the early days there were those who argued that rights actually impose obligations on the state to actively do things - such as providing housing (the right to housing), schooling (the right to education), welfare (the right to social security) and so on.

Naturally, positive rights were chiefly championed by the USSR and its allies during the Cold War, while in the West the idea generally prevailed that rights were constraints on state action. But during the closing decades of the 20th century the idea began to gain credence in human rights circles across the piece that actually all rights have both positive and negative dimensions. Hence, for example, although the right to education has a positive dimension (the State has to provide public schooling), it also has a negative one (the State must not prevent children being educated). And although the right to freedom of expression is thought of as being a negative right (the State must not interfere with speech), it also has a positive aspect (the State must ensure that everybody has equal opportunities to express themselves, and fora in which to do so). And so on. Roughly from the middle of the 1980s, then, it became orthodoxy in human rights circles that all rights require positive action by the State in order to be properly realised, and that rights are indeed best thought of as the legal means through which to force the state to improve well-being.

(The timing here is not an accident, by the way; as Samuel Moyn, a prominent historian of human rights, has argued, Western leftists - disappointed with the failure of the 1968 movement to gain lasting traction, and disillusioned in particular with the obstinately non-revolutionary working classes - began giving up on democratic politics from the mid-70s, and took up human rights instead. The result was a sudden explosion of interest in rights from that period onwards.)

The idea that the state should have a duty to protect people from the effects of climate change did not, then, come entirely from nowhere - it has always been the case that there are people who really like the notion that the State has duties to provide for the population and improve its collective well-being, and who think that the point of human rights law is to impose such duties. In many ways this fresh development is, then, an iteration of a familiar theme - just another stage in a long process, with deep roots.

The second thing to clarify is the jurisprudential means through which the scope of human rights duties expands. As I earlier noted, there is no right to protection from the ‘serious adverse effects’ of climate change in the ECHR. But the ECtHR has long held to a doctrine of interpretation which it refers to as the ‘living instrument’ approach (otherwise called ‘evolutive’, ‘dynamic’, or ‘teleological’ interpretation). The idea here is that, while the Convention might say x, y or z, and while the original drafters may have had particular intentions in mind, the Court should not really feel itself beholden to the treaty text, or the drafters’ intentions, so long as it is achieving what is in the spirit of the Convention in view of the context of the times. (With the judges sitting in the Court on any given day getting to decide, of couse, what that spirit is and how it should inform interpretation.) Hence, to use the Verein KlimaSeniorinnen Schweiz example, Article 8 of the Convention only says the following:

Everyone has the right to respect for his private and family life, his home and his correspondence

But the Court can hold that this encompasses the right to protection from the serious adverse effects of climate change because, well, the Convention is supposed to be about protecting human rights, and that surely must mean that anything which threatens human rights comes within its auspices. And since in the modern day we ‘know’ that climate change threatens people’s human rights, we must update the interpretation of the Convention to encompass that threat. From the press release issued by the Court with respect to Verein KlimaSeniorinnen Schweiz:

[I]nadequate State action to combat climate change exacerbated the risks of harmful consequences and subsequent threats for the enjoyment of human rights – threats already recognised by governments worldwide. The current situation therefore involved compelling present-day conditions, confirmed by scientific knowledge, which the Court could not ignore in its role as a judicial body tasked with the enforcement of human rights.

The eminent English judge, Lord Hoffman, once called this ‘living instrument’ approach ‘a banner under which the Strasbourg Court has assumed the power to legislate’. And he was right to do so: it allows unelected, unaccountable judges sitting in the ECtHR to decide that the text of the Convention means more or less whatever they see fit for it to mean, and thereby in essence make law from whole cloth. Rights and wrongs of climate change responses aside, it ought to be intolerable for a mature democracy like Switzerland to remain subject to the vagaries of such an institutional framework, but there you have it.

And the third thing to make clear is that, while lawyers are fond of pooh-poohing ‘slippery slope’ arguments (often labelling them, indeed, products of ‘the slippery slope fallacy’), such arguments have a mysterious way of coming true in the end. The idea that human rights could have a ‘positive’ aspect first found its way into ECtHR jurisprudence in very unthreatening, reasonable cases. In Marckx v Belgium (1979), the ECtHR found that the right to family life (under Article 8 of the ECHR) imposed a positive obligation on the State to recognise in law the status of children of unmarried mothers as being essentially equal with respect to inheritance as children of married mothers. In Airey v Ireland (1979), it found that the right to access to a court (Article 6) and the right to family life imposed a positive obligation on the State to provide legal aid in family law proceedings. In X and Y v The Netherlands (1985), it found that the right to be free from cruel, inhuman or degrading treatment (Article 3) implied that a positive obligation existed for the State to investigate and prosecute accusations of rape. (I mentioned these cases in a different context, regarding the duty of the State to protect the sexual freedom of prostitutes and their clients, here.)

These instances all feel pretty benign. To argue that the State should have no obligation to ensure that children of unmarried mothers can inherit property on equal terms to those of married mothers in law, or that the State should have no duty to provide legal aid in family law proceedings, or that the State should have no positive obligation to investigate and proscute all accusations of rape, makes one sound like history’s greatest monster. And I should make clear that the argument here is not that the State shouldn’t enshrine equality between children of unmarried versus married mothers, or shouldn’t make legal aid available, or shouldn’t investigate and prosecute accusations of rape.

It is rather about whether the State should be liable in law if it fails to do those things. And the problem there is that once you concede that it should be so liable, you have no principled basis for drawing a line as to where such positive obligations should end. If the State has an obligation to provide legal aid in family law proceedings on the basis that to fail to do so would not protect people adequately who are engaged in family law disputes - well, on what principled basis should it not have an obligation to protect people from the ‘serious adverse effects’ of climate change, so long as causation can be proved?

This, then, is the position in which we find ourselves - a culmination of decades of gradual expansion and overreach in what human rights law requires, driven by a judiciary and a wider institutional culture that sees no real room for democratic deliberation over issues that are thought to ‘matter’. Whatever one thinks of the issue of climate change and what States should be doing to combat it (and I wish to make clear, for the avoidance of doubt, that I have no objection to, and am supportive of, efforts to respond to that issue so long as they are carried out through political rather than depoliticised processes) this creeping legalisation of every feature of life under the rubric of human rights must be viewed with the suspicion it deserves. If you want to live in a democracy, that means you should wish for it to be the people’s representatives, and not Strasbourg judges, who get to make policy and get to legislate - with respect to everything, not just climate change.

I hope this little precis was informative. In future posts, I will go into some more detail as regards the philosophical origins of these developments, and where things are headed.