RELINQUISHMENT TO THE GRAND CHAMBER: THE CLIMATE CHANGE CASE

INTRODUCTION:

On Friday, 29th April, the European Court of Human Rights [ECtHR] declared that the Swiss Climate Case [Verein KlimaSeniorinnen and Others vs Switzerland] was relinquished to the Grand Chamber. The competent Chamber of the ECtHR relinquished authority to the Grand Chamber in compliance with Article 30 of the ECHR and Rule 72 (1) and (2) of the Rules of the Court. This relinquishment can be utilized, firstly, when the 7 judges agree that the issue raises a ‘grave question impacting the interpretation of the ECHR or its Protocols, or secondly, where there is a chance of deviating from preceding case laws’. 

FACTUAL BACKGROUND:

The Swiss Climate Case involves a complaint filed by a Swiss Association and its members [a group of elderly individuals] who are protesting against the effects of global warming on their health and living standards. The applications mentioned three primary issues: first, insufficient climate policies in Switzerland that infringe upon the right to life and health under Articles 2 and 8 of the ECtHR; second, the Swiss Federal Supreme Court dismissal of their cases on irrational grounds, in breach of Article 6 of the Convention; and third, the courts and Swiss officials non-compliance with the subject-matter of their complaints, in breach of Article 13 of the Convention. 

The significance of the Swiss Climate case is that it will be the first case of climate change adjudicated by the ECtHR. Although Duarte Agostinho and Other was the first case to bring up the topic of climate change, the Swiss Climate Case and Agostinho address different legal issues.

RULE:

The competent Chamber of the ECtHR relinquished authority to the Grand Chamber in compliance with Article 30 of the ECHR and Rule 72 (1) and (2) of the Rules of the Court. This relinquishment can be utilized, firstly, when the 7 judges agree that the issue raises a ‘grave question impacting the interpretation of the ECHR or its Protocols, or secondly, where there is a chance of deviating from preceding case laws’.

In the case of Tatar vs Romania, the Court emphasized that pollution can damage the personal and family sphere of an individual because pollution damages the individual’s well-being and health. Further, the government has a responsibility to safeguard its people by governing and controlling the authorization, establishment, functionality and security of industrial operations, particularly those that are hazardous to the environment and human health. 

ANALYSIS:

i.                        VICTIM STATUS: 

The admissibility stage, particularly the acknowledgment of ‘victim status’ will be the initial obstacle for the Swiss Climate Case. According to Article 34 of the Convention, applicants can allege ‘to be the victim of an infringement’ of the rights in the Convention by one of the states.  If the claim is an omission to undertake appropriate measures mandated by a constructive obligation, the legal evaluation will invariably need at least an inquiry into whether the complainants have victim status.  Further, to be a victim of an infringement, the applicant must demonstrate that he/she was ‘directly impacted’ by the actions complained of, like in the current case, the allegedly omitted implementation of necessary actions despite an international duty binding upon Switzerland. 

In the case of Cordella vs Italy, the Court ruled that persons are ‘directly affected’ by the measures complained of if there is the persistence of a circumstance ‘of great environmental danger’, in which the environmental risk ‘will become potentially detrimental to the well-being and health of those who are subjected to it’. The Swiss climate case fulfills that standard because the Swiss authorities have not taken positive action to protect the elderly persons who will be subjected to intense heat waves in the future.

The applicant in Swiss Climate contended that the applicant organization should be given representative status for its members. This contradicts the previous precedent, as the Court does not consider petitions in the public interest [‘actio popularis’]. However, in the case of Fadeyeva, the court stated that because there is no  ‘right to nature preservation’ in the Convention, in cases of environmental deterioration ‘the involvement must personally affect the household, home or private affairs of the applicant’ to invoke Article 8 of the Convention. 

  1. POSITIVE OBLIGATION IN THE CONVENTION: 

Generally, positive duties are those which compel member states to undertake certain actions. They are essential where there is (I) a known and serious danger to the exercise of a right, and (II) the State has the potential to restrict, mitigate a danger or remedy its repercussions. A pre-requisite is that the State was aware of, or should have been aware of, the presence of a serious and imminent threat to a major legal value. In the case of Balmer-Schafroth and Others c. Switzerland, the Grand Chamber pointed to a ‘threat that was not just significant but also precise and, most importantly imminent’.

The two kinds of positive duties which have been recognized by the ECtHR to safeguard can co-exist in the same situation, whether it’s in the context of domestic violence or various other risks. The Swiss Climate case essentially turns on the issue of preventive positive duties under Articles 2 and 8 of the Convention. The applicants note the negative consequences of the absence of climate change prevention measures. See the case of Bevacqua and Others vs Bulgaria.

The case law and precedent of the Court acknowledging the duty to safeguard against widespread risks by legal and other actions [and the recognition that there can be potential victims, before damage has occurred] has conceptual implications on the evaluation of the victim status provision. If claims of omissions to act in respect to particular, one-time risks will receive preferential consideration over claims of breaches of duties to safeguard against potentially serious risks on a broader level, protection would be rendered ineffective. Certainly, the positive duties at issue in the current case are primarily directed at the law-maker [and as the Swiss Federal Tribunal stated, the duties are consequently of importance to political entities]. However, because of the lawful character of the duties, their invocation shouldn’t be considered inadmissible due to procedural grounds. 

CONCLUSION:

Humanity is facing a worldwide climate catastrophe that is already having devastating consequences for human rights. To avoid disastrous climate change and the wave of human rights abuses that would follow, immediate, comprehensive, and revolutionary reforms are essential. When States fail to adopt effective measures to accomplish the objectives of the Paris Agreement, international human rights courts may and should give adequate protection to elderly people or other vulnerable persons who are endangered by catastrophic heat waves and its related consequences. The Court’s reaction to this conclusion is expected to set the stage for how it handles future climate issues, and it will be echoed in the court rulings of domestic courts as well as various other human rights organizations. The ECtHR shall act as a Court of Law within the scope of its jurisdiction, always keeping in account that Convention protections must be practical and genuine, not fictitious.

Syria and Domestic Prosecutions: Upholding hope, one case at a time (Part 2 of 2)

National Prosecutions based on Universal Jurisdiction: the cases of Germany, Sweden, and “France”

Last June, Germany’s chief prosecutor issued an international arrest warrant for Jamil Hassan, head of Syria’s powerful Air Force Intelligence Directorate, and one of Syria’s most senior military officials. This move comes as a 2017 Human Rights Watch report mentioned [p.36] that, so far, very few members of the Assad government had been the subject of judicial proceedings in Europe based on universal jurisdiction.

At the time these charges (based on command responsibility) were filed with Germany’s Federal Court of Justice, Patrick Kroker (European Center for Constitutional and Human Rights, hereinafter “ECCHR”) commented that this moment was“historical”, adding: “That this arrest warrant has been signed off by the highest criminal court in Germany shows that they deem the evidence presented to the prosecutor is strong enough to merit urgent suspicion of his involvement.”

N.N., a Syrian activist present at the side-event held today mentioned in Part 1 of my post, underlined several times the importance of these arrest warrants. Until their issuance, he said, many Syrians never would have thought that high-level representatives of the Syrian regime would have charges laid against them. For many this is a great sign of hope, a demonstration that we are “not only listening to stories but also doing something about it.” He mentioned this point in part as an answer to a participant at the event who wondered what it could mean to the people still in Syria to see prosecutions happening in Europe, but not in Syria or before the ICC.

Mr. Patrick Kroker, Legal Advisor& Project Lead for Syria at the ECCHR (Berlin) explained the work done by his organization to initiate prosecutions in Germany linked to the Syrian conflict. With regard to Germany, the progress over the past few years has been spectacular: 11 cases have been brought to trial. As well, three were brought to trial in Sweden, one in Switzerland, and another in Austria (for an excellent overview of proceedings linked to Syria, see the Amnesty International page “Justice for Syria” here).

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Syria and Domestic Prosecutions: Upholding hope, one case at a time (Part 1 of 2)

Credit: Lynsey Addario

As of July 2018, more than 500 000 people had been killed as a result of the conflict in Syria, according to the British-based Syrian Observatory for Human Rights. With the UN Special Envoy for Syria having recently resigned, signs of hope seem dire for many Syrians and their supporters, there and abroad.

A side-event held today, on Day 3 of the 17th Assembly of State Parties (ASP) to the International Criminal Court, brought distinguished panelists together to discuss the role of prosecutions held in Europe through universal jurisdiction for international crimes, using Syria as an example. More than only about accountability, the resounding message about these prosecutions was that their role was to give out and to inspire the people to be strong, fight for justice and, maybe, eventually, be able to move on.

Earlier this week, during a keynote address at a reception held before the launch of the ASP, Ms.Catherine Marchi-Uhel aptly said that the ICC is the center piece of the international justice system. However, she also reminded the audience that the role of the international jurisdiction as a springboard for national prosecutions is often overlooked.

Yet, despite the hopes, symbolism and assistance to the rebuilding of judicial institutions that national prosecutions can bring (as I mentioned in my previous blog post on Quid Justitiae in the context of the present ASP), the political context may simply not allow it and, in the case of Syria, there is obviously no need to elaborate on why prosecutions at the national level are not possible.

In the case of Syria, one of the worst situations since World War II, as Ms Marchi-Uhel underlined, the pathway to the ICC is blocked, as a UN Security Council (UNSC) resolution to refer the case to the ICC was vetoed in 2014. With the ICC option gridlocked, Marchi-Uhel said that the international community needed to be creative to find new strategies to supplement the Rome Statue system: there was a need to think outside the international justice box. This is why, in 2016, the UNGA decided to create the International, Impartial and Independent Mechanism to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in the Syrian Arab Republic since March 2011 (IIIM) to collect and analyse evidence of international crimes committed in Syria (see the IIIM official website here). Not a court or tribunal, it is “a building block for comprehensive justice” and can “turn limitations into opportunities”. This was definitely a smart move, as the call for Syria to be referred to the International Criminal Court by the United Nations Secretary-General Antonio Guterres did not seem to have resonated any more than previous attempts made through the UNSC.

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