Climate change and human rights: what is the impact for the Isle of Man?

In a monumental judgment on Tuesday 9 April 2024, the European Court of Human Rights (“ECtHR”) found that Switzerland had violated rights under the European Convention of Human Rights (“Convention”) of the members of KlimaSeniorinnen, an association of mostly older Swiss women, as a result of Switzerland’s failure to adopt and apply measures capable of mitigating the effects of climate change.

With the Convention having 46 member states, Europe was watching as the ECtHR gave its landmark judgment, which will now guide domestic courts in those states where the Convention has domestic effect. The Convention has had domestic effect in the Isle of Man under the Human Rights Act 2001 since 1 November 2006.

In this article, litigation advocate Andrew Langan-Newton explores the consequences that ECtHR’s judgment may have for a response to climate change in the Isle of Man.

Background to the judgment

KlimaSeniorinnen, a Swiss organisation formed to promote and implement effective climate protection on behalf of its members in Switzerland, first brought its claim to the ECtHR in 2020 after exhausting attempts in the Swiss courts to seek greater action to reduce greenhouse gas (“GHG”) emissions in Switzerland.

KlimaSeniorinnen claimed (amongst other things) that the failure of Switzerland to put in place measures to adequately address climate change in line with international climate change law, including the Paris Agreement, violated rights under the Convention, including Article 2 (right to life) and Article 8 (right to respect for private and family life). It was argued that the members of KlimaSeniorinnen (generally being older Swiss women) were disproportionately impacted by Switzerland’s alleged failure to properly respond to climate change.

KlimaSeniorinnen’s claim was joined and heard with two other separate climate change claims: –

1. Agostinho and others v Portugal and others; and
2. Carême v France.

All other climate change and human rights claims before the ECtHR were paused pending the resolution of these claims.

Key aspects of the KlimaSeniorinnen judgment

The ECtHR gave its judgment at the same time as Agostinho and Carême. Whilst the ECtHR’s judgment found in favour of KlimaSeniorinnen, those other claims did not succeed on the grounds of preliminary jurisdiction and standing questions.

In deciding that KlimaSeniorinnen had met the specific requirements to bring a claim under the Convention for its members, the ECtHR went on to declare:

1. A new right under the Convention for effective protection by state authorities from the adverse effects on an individual’s well-being arising from climate change; and
2. A new primary duty on Convention member states to adopt and apply measures capable of mitigating climate change.

In complying with the new right and duty, the ECtHR determined that member states would have a reduced margin of appreciation (flexibility) in deciding the aims and objectives of climate action (in light of the global consensus enshrined in the Paris Agreement, to pursue efforts to limit the increase of global average temperatures to 1.5°C above pre-industrial levels).  However, in respect of the choice of specific policies and regulation to achieve the aims and objectives, member states would be afforded a wide margin of appreciation.

In the specific context of Switzerland, the ECtHR determined that its omissions to take adequate action on climate change had breached the Article 8 Convention rights of the members of KlimaSeniorinnen. It was found that Switzerland had failed to attempt to quantify its impact on global GHG emissions through a carbon budget (a measure of GHG allocated to each state that may be emitted before a global temperature increase is reached); and therefore, its policies could not be said to be in line with the Paris Agreement and in compliance with its reduced margin of appreciation to set climate change aims and objectives under the Convention.

It was also indicated by the ECtHR that “embedded emissions” arising outside of Switzerland but in order to produce goods that were ultimately imported to Switzerland, would properly fall within the territorial GHG emissions of Switzerland for calculation within its carbon budget.

How the judgment may impact the Isle of Man

Under section 2 of the Human Rights Act 2001, an Isle of Man court or tribunal determining a Convention right must take into account a relevant judgment of the ECtHR. This will include the KlimaSeniorinnen judgment and the new right and duty upon the Isle of Man state acting through the Isle of Man Government and Tynwald. Additionally, since 22 March 2023, the Isle of Man has been a party (under the United Kingdom banner) to the Paris Agreement, which was relied upon by the ECtHR.

The Isle of Man’s response to climate change is governed by the Climate Change Act 2021.  It is noteworthy that in the preparation of the Climate Change Act, carbon budgets were specifically not adopted as a means of settings the aims and objectives of the climate change policy response, on the grounds that:

1. Professor James Curran, advising the Isle of Man Government, had recommended that fewer targets should be set against carbon emissions, on the basis that programme management is better served by setting targets against deliverable actions; and
2. The Isle of Man does not have the volume of large manufacturing or industrial greenhouse gas emissions.

In light of the terms of the ECtHR’s judgment that it would be difficult to accept that the absence of the use of carbon budgets would be compliant with Article 8 rights, there is uncertainty (noting the reduced margin of appreciation) as to how far the Isle of Man’s climate change response regime complies with the Convention.

Additionally, considering the ECtHR’s view that “embedded emissions” (emitted in the production of goods imported to the Isle of Man) should properly form part of the calculation of a member state’s GHG emissions, there arises a question as to how far current Isle of Man Government GHG calculations take into account such emissions. Pursuant to section 13 of the Climate Change Act 2021, Isle of Man emissions are calculated on the basis of:

1. GHG emissions that are emitted from a source in the Isle of Man; or
2. GHG emissions attributable to the Isle of Man that are specified under regulations.

If you have any questions on the issues raised in this article, please contact Andrew Langan-Newton.