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Climate change and human rights

Where does the issue of climate change sit under Article 8? Primarily concerned with private and family life, Article 8 will cover other matters

In May 2019, in the third of his Reith Lectures, the retired Supreme Court judge, Jonathan Sumption, discussed how the Strasbourg Court had transformed the European Convention on Human Rights into a “dynamic treaty”. He described how the Convention is a “living instrument” because “the court develops it by a process of extrapolation or analogy so as to reflect its own view as to what additional rights a modern democracy ought to have”.

In simple terms, what he was referring to was how the European Court has developed the scope of Convention Articles so that they include legal rights that are not readily located in the text of the Articles. Further, and as he pointed out in the lecture, this can most readily be seen in the context of Article 8 which, whilst primarily concerned with private and family life, has been held to cover matters including immigration, deportation, criminal sentencing, sexual orientation, health care, housing, nuisance and many more important social issues.

Whilst environmental and planning matters have frequently been held to be encompassed within Article 8, we can now also put the global issue of climate change under its umbrella. In the case of Urgenda v Netherlands [2019], the Dutch Supreme Court rejected the State’s argument that, because it was global in nature (i.e. in both cause and scope), “the threat of dangerous climate change” was not protected by the Convention. Rather, it held:

  • The protection afforded by Article 8 is not limited to specific persons, but applies to society or the population as a whole.
  • It encompasses a duty to take preventative measures to counter a danger even if materialisation of the danger is uncertain.
  • The State was therefore obliged to take appropriate measures against the threat of dangerous climate change.

Broadly speaking, the Dutch Supreme court held that the same obligations also arose under Article 2 (the right to life). It therefore upheld the 2018 decision of the Court of Appeal that the State was required to reduce greenhouse gas emissions by at least 25% by the end of 2020.

Urgenda is an example of a case brought by an environmental group against a nation state, an increasingly international phenomenon. Such cases invariably include a focus on human rights obligations and they also feed into the general growth of climate/environmental-based legal matters at a domestic level.

In terms of traditional litigation, more severe and unpredictable weather is leading to an increase in claims related to flooding, fallen trees and subsidence. The risks associated with diesel fumes are now widely recognised; exposure has been linked to a range of serious conditions and employers obviously have a duty to control exposure of employees to hazardous substances. There is then the issue of clean air more generally. The Air Quality Directive is a part of retained EU law that is implemented domestically through the Air Quality Standards Regulations 2010. The new Environment Bill, once it becomes law later in the year, will introduce further air quality controls - the standards to be adopted are yet to be confirmed.

An example of climate change issues, pollution, clean air and impact on health being brought together in one place is the tragic recent case of Ella Kissi-Debrah. Ella sadly died from severe asthma in 2013 at the age of just nine. At an inquest that concluded late last year, a wide-ranging inquest to meet the State’s obligations under Article 2 of the Convention, the coroner recorded “air pollution” as a cause of death (alongside acute respiratory failure and severe asthma). This was on the basis that, as a result of living near the South Circular Road in London, she had been exposed to levels of nitrogen oxide and particulate matter in excess of WHO Guidelines. The coroner’s Prevention of Future Deaths report is still awaited. 

It seems clear that environmental cases of all types will increasingly come before the courts in the coming years. These may be in the form public law challenges to decisions of local and central government, environmental damage claims related to adverse weather events or traditional disease/injury claims based on exposure to substances hazardous to health. Regardless of the nature of the litigation, for public bodies one thing is clear; the “dynamic treaty” that is the Convention will mean human rights feature prominently, whether as a key cause of action in their own right or as a nuanced right of redress where a traditional tortious duty of care is hard to establish.

 

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