Climate change is not a matter for human rights law

Fred De Fossard I 11 April 2024 I The Spectator Australia 

We have debated for years whether Britain’s continued membership of the European Court of Human Rights threatens our national security. This ruling means that it will threaten our prosperity and democracy as well.

The ECHR has said that climate change policy is a human rights matter. The Court ruled that Switzerland – a signatory, like the United Kingdom – had ‘failed to comply with its duties under the Convention concerning climate change’ and that it had violated the right to respect for private and family life. This ruling followed a case brought by a group of elderly Swiss women, who claimed that the Swiss government’s supposed failure to tackle climate change threatened their human rights.

Claimants alleged that thanks to heatwaves, they need to organise their lives around a weather forecast, and this was a violation of their human rights. The Court agreed. By deciding that the potential health implications of one nation’s own climate policies – Switzerland itself is responsible for a tiny fraction of global emissions – is a human rights matter, the Court has potentially expanded the remit of human rights over the entirety of social and economic policy.

Even in times like ours, we must consider how extraordinary this is. Domestic courts have found against government climate change policies before, but not in such an expansive way. For example, the British government recently lost a case in the High Court on its own climate policy, as it apparently fell foul of its legal obligations under the 2008 Climate Change Act. This is an unfortunate ruling, but it is at least based on British law, which can be changed by parliament if it wishes.

By contrast, the Strasbourg Court’s ruling is a direct attack on democracy. It has decided that Article 8 of the European Convention on Human Rights – the right to family life – means that national governments must cut their greenhouse gas emissions and reach net zero. Furthermore, the Court has decided that the best organisation to assess whether elected governments are doing this is the Court itself, superseding the will of the Swiss people themselves, who voted against the claimants’ campaign in a recent referendum.

The Court, which voted 16 to 1, has taken the ‘living instrument’ approach to law to an extreme. This means that instead of simply interpreting the law as it is written, to assess whether a claimant has been wronged, the Court can adapt the law as written to present-day conditions and morality, because public understanding of human rights may have changed since the Court’s establishment in the 1950s. Unsurprisingly, this has led to waves of judicial activism, of which this judgement is but the latest example. Nobody, indeed, could have imagined in 1950 that living in a hot climate was a violation of one’s human rights. But the judges in Strasbourg have decided that is the case.

There was one voice of dissent on the court, a British judge called Tim Eicke KC. Eicke wrote that this case has gone ‘well beyond what [he considers] to be, as a matter of international law, the permissible limits of evolutive interpretation’. It is clear that Eicke supports the principle of the living instrument doctrine, and would like elected governments to take stronger action to tackle climate change, but he concludes that the court’s judgement ‘has gone beyond what it is legitimate and permissible for this Court to do and, unfortunately, in doing so, may well have achieved exactly the opposite effect to what was intended’. (Note, however, that in using the word ‘unfortunate’, even Eicke is happy to express a political view.)

But Eicke is right about the judgment. Climate change policy is not a matter for a human rights court. An international human rights court, if it is to exist, should deal in matters of torture and persecution. By intruding on economic policy in this way, it is moving to take control over democracy and sovereignty, and the rights of voters to elect the government they wish.

The precedents set by this case could be grave. The UK, needlessly, suffers from some of the highest industrial energy costs in the world, and the British government has tied its economic policy in knots over various pieces of environmental compliance law. Adding an ECHR judgement on top of this is a recipe for disaster. If the government’s attempt to accelerate the exploitation of the North Sea’s oil and gas reserves are ruled to violate human rights, British prosperity and democracy are at serious risk. Economic growth, employment, and the any hope of bringing back cheap energy could all be foregone, thanks to the efforts of a group of Swiss septuagenarians and activist judges in Strasbourg.

As we all know, despite being no longer a member of the European Union, Britain remains subject to the ECHR. Environmentalist campaigners may cheer today, but this ruling may make every tax levied, every factory built, or every new car produced a matter of human rights law. The ECHR may have just made its gravest error yet.

Author: Fred De Fossard