The European Court of Human Rights (ECHR) has recently delivered significant Grand Chamber rulings in three climate change cases, which have profound implications for environmental jurisprudence and the protection of human rights in the context of global warming. As a Kenyan law firm, we find these developments particularly instructive, given the increasing importance of climate change litigation and the need for robust legal frameworks to address environmental challenges.
Verein KlimaSeniorinnen Schweiz and Others v. Switzerland
In this case, the ECHR recognized that the European Convention on Human Rights encompasses a right to effective protection by State authorities from the serious adverse effects of climate change on lives, health, well-being, and quality of life. The Court’s decision to declare the complaints of the individual applicants inadmissible based on the victim-status criteria under Article 34 of the Convention, while recognizing the applicant association’s right to bring a complaint, is a nuanced interpretation that balances individual and collective interests in environmental matters.
The ruling underscores the State’s “positive obligations” under the Convention concerning climate change and sets a precedent for the recognition of environmental rights as an integral part of human rights law. This aligns with Kenya’s progressive stance on environmental protection as enshrined in the Constitution of Kenya, 2010, particularly Articles 42 and 69, which guarantee the right to a clean and healthy environment and impose obligations on the State to ensure sustainable development and environmental conservation.
Carême v. France
The inadmissibility of the application in *Carême v. France* due to the lack of victim status within the meaning of Article 34 of the Convention highlights the importance of demonstrating a direct and personal impact by the alleged failure of the State to address climate change. This reinforces the principle that not all environmental concerns may be translated into legal standing, the _locus standi_ principle that is also reflected in Kenyan jurisprudence where standing to sue in environmental cases is often linked to the need to show a nexus between the applicant and the environmental harm suffered.
Duarte Agostinho and Others v. Portugal and 32 Others
The ECHR’s decision to declare the applications against Portugal and other States inadmissible on the grounds of non-exhaustion of domestic remedies and the lack of grounds in the Convention for the extension of extraterritorial jurisdiction is a reminder of the procedural hurdles that may impede climate change litigation. It emphasizes the necessity for applicants to first seek remedies at the national level before approaching international courts. This is consistent with the principle of subsidiarity and mirrors the approach taken by Kenyan courts, which generally require the exhaustion of local remedies before seeking redress in international forums.
Conclusion
The ECHR’s Grand Chamber rulings in these climate change cases offer valuable insights into the evolving legal landscape of environmental human rights. They highlight the need for States to take effective measures to combat the adverse effects of climate change and protect the rights of their citizens. As a Kenyan law firm committed to promoting environmental justice, we recognize the significance of these rulings and the potential they hold for shaping national policies and legal strategies in Kenya and beyond.
For further inquiries or legal assistance on environmental law and climate change litigation, please do not hesitate to contact our firm.
I am a Kenyan Advocate and the Managing Partner of B M Musau & Co., Advocates, a position I have held since 1999. My work encompasses regulatory reforms, reduction of administrative burdens, the structure of business entities, joint ventures, acquisitions, banking, foreign investment and other general corporate areas
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