On April 9, 2024, the European Court of Human Rights rendered a momentous judgment that, potentially, will have far-reaching effects on climate change law and litigation worldwide, including in Australia.
In a 16 to 1 judgment, the Court decided that Article 8 of the Convention on Human Rights, which protects the right to respect for private and family life, had been violated by the Swiss authorities for not adopting effective and timely measures to mitigate the impact of climate change on the plaintiffs.
The Court Expands the Convention on Human Rights
Article 8 of the Convention on Human Rights stipulates that, “All persons have the right to respect for their private and family life, their home and their correspondence.”Reading this provision, it is fair to suggest that most people might think that it deals, for example, with the right of people to determine the number of children, how to achieve their preferred work-family balance, decisions on where to live and in what type of dwelling, and how to communicate with others.
Instead, the Court has given the provision an extended meaning—via judicial activism—which could not be reasonably implied.
Of course, judicial activism is an appealing philosophy because it espouses the popular idea that the Convention should be interpreted flexibly to meet new circumstances.
Indeed, this is in line with the description of the Convention on its official website: “A Living Instrument.”
Article 8, relied upon by the Court, is vague and undetermined and, therefore, is an ideal vehicle for activist judges to work with; it is essentially an empty vessel, the meaning of which must be filled in by the Court.
The Court, relying on international climate change declarations—notably the 2015 Paris Agreement—decided that “Article 8 must be seen as encompassing a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life.”
The Court accepted as a “fact” that the “work of the IPCC [Intergovernmental Panel on Climate Change] demonstrated that increases in GHG [Greenhouse Gas Emissions] concentrations since around 1750 had unequivocally been caused by human activities” and that there was a “near-linear relationship between cumulative anthropogenic GHG emissions and global warming.”
Room for Doubt on Climate Science?
However, growing scientific evidence shows that carbon dioxide does not cause the planet to experience higher temperatures.In Australia, the link between carbon dioxide (CO2) and higher temperatures has recently been debunked by the work of Ian McNaughton, a well-qualified and experienced scientist, who researched original temperature gauge records from all Australian state capital cities, and around London, over the past hundred years when they were first recorded.
His paper, “Temperature measurements versus population growth and carbon dioxide concentration,” reveals that, “A clear (and expected) correlation between the increasing concentrations of CO2 and the increasing population of the world, as represented by the population growth in Sydney and Central London. In this case, the problem here is not the CO2—it is the ability of governments to sustain higher levels of populations in terms of food and accommodation.”
He concludes that his research “strongly suggests that increasing concentrations of global atmospheric CO2, regardless of its sources, should no longer be of global concern to humanity, both now and in the future” and that it can only “improve the quality and abundance of plant growth that has occurred during some of the past millennia without harming the world’s inhabitants.”
Mr. McNaughton’s work and similar studies reveal that people do not have the power to alter the Earth’s climate.
In any event, Article 8 of the Convention states that persons have only a “right to respect for their private and family life.”
Hence, any inference that goes beyond the Convention’s direction by imposing a positive obligation on nations to adopt “effective” measures to halt global warming, is necessarily an unwarranted extension of the contents of the Article.
Such an extension is problematic because the provisions of a human rights charter are meant to protect people from governments.
For example, Article 10 of the Convention says, “Everyone has the right to freedom of expression,” and that governments are impeded from curtailing this.
Nevertheless, it is likely the Australian climate change lobby will welcome this decision by the European Court of Human Rights.
The euphoric situation that the judgment might generate will overshadow, at least temporarily, the need to consider dispassionately the harm that “settled” science of climate change inflicts on Australian people.
