Readers may well have heard the news that, yesterday (April 9th 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. Stereotypically in the eyes of most laypeople in Western democracies, human rights impose ‘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 course, 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 prosecute 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 précis 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.
Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.
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What a god damn joke and clown world our diseased Western Civ has become. How is some bullshit about climate ‘change’ protection from plant food a human right?
What happened to my human rights during Rona ? No protection from the Medical Nazis and their lockdowns, stabs, diapers, distancing and terror-propaganda. No right to my own body, or my family’s right to schooling and work, or travel. No right to protect yourself against the injury and death initiated by fascist policy and jabs.
Q: -What happened to my rights and protection from the state?
Q: -What happened to my natural God given right to my own freedom, body, health and choices?
If these arselings want a civil war, they will get one.
How about a human right not to have one’s life ruined by mad communists?
I don’t know how many people regularly read DS – I suspect not many, sadly – but my guess is that for most of them this article is kind of preaching to the converted. Articles like this really need to get to a wider audience – for a start something like the Telegraph and the Mail.
I’m reminded of Scalia’s dissent in the “gay marriage” case:
“Justice Scalia, with whom Justice Thomas joins, dissenting.
I join The Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.
The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.“
“I don’t know how many people regularly read DS – I suspect not many, sadly”
Toby announced at the Christmas Party that DS has 1.8 million page views per month.
That sounds like a lot but I am not sure what it means in terms of human beings who read the articles. If you divide 1.8m by 30 (as in number of days in a month) you get 60,000 which for a daily readership is pretty low. Then consider that a page view is not a reader – a given reader will invoke multiple pages while they navigate around the site, refresh pages etc. It would be good to know how many unique regular readers they have. Not enough!
60K-100K / day is very good considering the mountains of alternative sites/podcasts/substacks etc. When you add up this site + all the others, the fake mainstream-lamestream is getting crushed.
If we convert 2 or 3 friends and de-program them from the brainwashing propaganda and get them on here and other other sites and substacks, the impact would be quite noticeable.
It’s certainly better than nothing, and as you say it’s one of quite a number of alternative sources.
What we want ofcourse is as many readers as possible on DS, but also what is most important is that the message as regards this particular article and its subject gets across to millions on whatever platform, just as the alarmist message does, and people get the opportunity to realise that climate change is not the black and white issue they might have come to think it is. ——It is not the case that there either is climate change or there is not climate change. From what I can see having looked into this issue for about 20 years is that it is a smidgeon of the truth elevated into a planetary emergency with very little evidence and entirely for political purposes. It is also not just an issue only about “science”. It is a moral social and economic one. The so called climate conferences or COPS are not really scientific ones. They are economic conferences about the worlds wealth and resources and how that gets divided up. Or as Edenhoffer of the IPCC put it “We redistribute the worlds wealth by climate policy”. ———–These ladies in Switzerland are likely to be totally oblivious to any of the climate politics and will likely think this is a straightforward issue of “science” —-It is NOT, and the ruling is very bad news for all of us.
That is good to know. —–1.8 million is good. I often think when I see the amount of thumbs up and thumbs down beside comments that there are not nearly as many as that viewing this site. ——I almost said “Our site” there.
Having DS is great. But the downside is this kind of facility lulls many into a false sense of security – that ‘someone is doing something’.
I have seen it so many times before.
The only way to ensure something is being done about these problems is to do it and not assume someone else is.
https://www.telegraph.co.uk/news/2024/04/09/farmers-warn-food-shortages-no-harvest-world-war-two-rain/
The expected food shortages that some of us have been predicting look as if they are going to bear fruit – sorry, couldn’t resist – via the geo-engineering we have been subjected to or “climate change ” as our leaders like to call it.
Comment after reading the opening paragraph: Let’s avoid falling into the That BS is really complicated!-trap. There can be no human right to be protected from what someone believes will be the future consequences of certain policy choices by a (democratically elected) government.
I agree with you obviously. ——-But once certain things become entrenched as ultimate truth rather than just assumption or speculation, or they become part of the fabric of reality, when in actually they are riddled with uncertainty and doubt then bad things can happen. And as regards climate change and its politics very bad things are already happening with Net Zero and this ruling in Switzerland just heaps more bad things on top.
Yes, Human Rights in its modern incarnation is incompatible with democracy. Human Rights now means leftist scum ie. the judiciary making law rather than elected politicians, who are at least somewhat accountable to the citizenry. Enduring treaties are also incompatible with democracy.
Restoration of democracy means an end to enduring treaties and to abstract rights having legal effect. It further means politicians and judges being more accountable to the citizenry with recall mechanisms for both and citizen initiated referendums made binding.
Yes but remember that our own “democratically elected” governments are already imposing their tyranny of climate on us. Net Zero was waved through Parliament with no debate and no vote. They just decided to DO IT.
Who voted for Covid vaccines?
Comment after reading the article: It was, at least insofar it contained historical information.
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.
A completely absurd judgement: A human right to be free from cruel, inhuman or degrading treatment is a negative obligation for the state: It must not subject people to cruel, inhuman or degrading treatment. But this is not applicable to private entities interacting with other private entities. These are governed by existing laws, especially, criminal laws. If a certain behaviour is not in violation of any criminal law at the relevant time, it’s not a crime, regardless of how cruel, inhuman or degrading someone believed it to be. This is already any example of the ECHR court clearly overstepping its boundaries.
Inadequate State action to combat climate change exacerbated the risks of harmful consequences and subsequent threats for the enjoyment of human rights
But the Swiss government doesn’t think its actions to combat climate change are inadequate, that’s just the opinion of some people who are politically opposed to it. The ECHR has thus not delivered a legal judgement but a political appreciation of certain political standpoints of certain people living in Switzerland.
Afterthought: An unvaccinated German friend of mine was forced to do a daily nose swab before work in Germany for months on end while her vaccinated colleagues didn’t have to do this. Did the ECHR court express any opinions on that possibly being cruel, inhuman or degrading?
And what about all the school children who were forced to do the same in the UK, regardless if they were vaccinated or not, just because the teacher’s unions wanted that for the supposed protection of their members from workplace hazards?
Could it perhaps be that ECHR ‘human rights’ work only one way, ie, people only have them insofar the ECHR considers their grievances politically desirable?
Clown world has no borders. Every insane statement gets a good airing in clown world. This one beggars belief. Is it really a human right to be protected against the effects of climate change? Who says it is? And how exactly do you measure it? You can’t. It’s ridiculous and as daft as you can get without running naked down the street with a flower stuck up your bum. What about all the other things we should be talking about that are human rights, in my view anyway, such as being allowed to live without any interference from government, about not being coerced into taking harmful substances, about having access to fresh food and clean water, and so on. Climate change effects? What exactly are they? If it gets hot during the summer, that’s not climate change, that’s the weather. Same goes for this unseasonably wet weather we’ve had for months – although my view is that it’s being created through a combination of cloud seeding (geoengineering – chemtrails) and HAARP – but if they are trying to legislate against the effects of climate change, which is where I think this is leading, then I have to laugh and say ‘Is that really the best you can do, because it’s batshit crazy.’
A report from the European Centre for Law & Justice (ECLJ) in Strasbourg reveals some disturbing conflicts of interest amongst some of the ECtHR judges including cases heard by judges with links via a political NGO to one or more parties.
Available in English, French and Spanish the report is titled “ONG et les juges de la CEDH, 2009-2019” [“NGOs and the Judges of the ECHR, 2009 – 2019“].
ECLJ is an international organization dedicated to the promotion and protection of human rights and religious freedom throughout the world. ECLJ has held special Consultative Status before the Economic and Social Council of the United Nations since 2007.
The report in question was prepared by Mr. Grégor Puppinck, PhD, Director of the ECLJ, who also takes part in the Committee of Experts on the Reform of the ECtHR, along with Delphine Loiseau, Associate Research fellow at ECLJ.
In one case out of 17 judges only one gave a proper assessment on scientific issues:
Judge Wojtyczek wrote:
For more information see: European Court of Human Rights Infringes Childrens’ Human Rights on Compulsory Vaccination
Remember these words. —–“Practical Politics is all about scaring the populace with an endless series of hobgoblins all of them imaginary so they are clamouring to be led to safety” ——These ladies in Switzerland look oh so smug and self satisfied after they win the right to be “protected” from climate change. Little do they probably realise what form this “protection” will take. The climate change policies they are clamouring for will be way worse than the actual climate they think is changing. These ladies think they have won some kind of victory but in reality this is a huge own goal. They have just signed their own impoverishment warrant. In doing so, because this ruling comes from the ECHR, they put us all in the same boat as well and governments now have carte blanche to “protect” us from the largely imaginary hobgoblin of climate change every which way they can think of, and trust me they will find every which way possible to do that.——-Roll up roll up get your heat pumps, get your smart meter, sell your car, but an electric one, stop going on holiday, stop eating meat, and on and on and on till we have no freedoms left and our prosperity is in the trash. —-Well done ladies.
So the right to be ‘protected from climate change’ involves the imposition of regulations that limit our right to freedom of association, expression, travel, private ownership, etc.. Right!
Be under no illusion – all of this is about making ordinary people so angry they take direct action.
And that is when we will be crushed with troops on the streets and worse.
We are some way off that – I hope – but as soon as some hothead does something bad it will be triggered.
Obviously Just Stop Oil have a free pass as do all the activists stoking the woke fires of transgenderism against the interests of those transgender people who just want to get on with their lives without all the drama and fuss.
Don’t care. Just leave the ECHR
There should be a human right not to be controlled by unelected judges.
It exists. It is called democracy.
However, these days it is a common as hens’ teeth and unicorns.