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In an extraordinary decision on 9 April 2024, the European Court of Human Rights in Strasbourg, ECHR, found that Switzerland had violated human rights, as spelled out in the European Convention on Human Rights, by not dealing resolutely enough with climate change. An association of elderly women in Switzerland, and some of its individual members, had claimed that they were as a particularly vulnerable group adversely affected by global warming. Previously, in a referendum on 13 June 2021, Swiss voters had rejected a set of government measures aimed at reducing GHG (Greenhouse Gas) emissions, believed to cause global warming. Switzerland was therefore, the Strasbourg Court found, in breach of article 8 of the European Convention on Human Rights which guarantees the ‘right to respect for private and family life’. The Court interpreted this article as including the ‘right for individuals to effective protection by the State authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life’. This interpretation is problematic, if not absurd, for several reasons.
Anti-Democratic Sentiment
First, you need not be a believer in unlimited democracy to note the anti-democratic nature of this decision. It is quite true that democracy cannot mean rule at the whim of a temporary majority, sometimes swayed by unscrupulous demagogues. The only real democracy is limited, and it is limited first and foremost by the rule of law. This implies accepted procedures for making political and legal decisions. It also implies individual protected domains which may, at least for the sake of argument, be called human rights. For example, it would be in breach of the rule of law if the majority, however large, would decide to disqualify some voters because of their sex or colour of their skin. Or if the majority would introduce censorship. The need for democracy arises because certain issues require collective decisions. They are therefore put to a vote. Which are those issues? Some questions can be resolved by science and should not be put to a vote, for example whether the earth is flat or round. Other tasks can be resolved by individual choice, for example whether to wear a white or a blue shirt. We leave such decisions to consumers in a free market. There remain issues where the group must decide as a whole, for example about the production of public goods such as defence or law enforcement and about the inevitable taxation for such purposes. It is sensible that as many as possible of those affected participate in such decisions and that the decisions are acceptable to them. ‘No taxation without representation.’ Another argument for democracy is of course that it acts as a restraint on politicians holding power because it provides a possibility every fourth or fifth year to replace them. Neither of those arguments implies unlimited democracy.
The European Court of Human Rights was established to answer one and only one relevant question: Was there a violation of the rights of an applicant under the European Convention on Human Rights? The presumption is that the applicant had exhausted all possibilities of having his rights recognised in his own country. The Court was certainly not established to make new law or to annul at will the laws of the signatory countries of the Convention. It is, or is supposed to be, strictly bound by two principles, the Subsidiarity Principle and the Margin of Appreciation. The Subsidiarity Principle lays down that that political issues should be resolved at the most immediate or local level possible. The Margin of Appreciation means that each signatory country to the Convention will have some discretion in applying and interpreting its articles and protocols. By overruling a majority of Swiss voters, who had in a referendum voted against certain government measures, sixteen judges in Strasbourg, from various European countries, were certainly not following the Subsidiarity Principle or respecting the Margin of Appreciation.
Common Sense on Global Warming
In the second place, some of the assertions taken as facts in this decision may be disputed (although neither the respondent—the Swiss government—nor the one dissenting judge really did so). It is by no means certain, for example, that elderly people like the Swiss plaintiffs would suffer more from extreme heatwaves than from severe cold spells. According to the National Center for Health Statistics, at the United States Centers for Disease Control and Prevention, CDC, about twice as many people die from excessive cold in any given year than from excessive heat. If so, then global warming may have saved many lives, not least those of vulnerable groups like the elderly.
We may agree with the United Nations Intergovernmental Panel on Climate Change, IPCC, frequently quoted in the ECHR decision, that we are witnessing considerable man-made climate change. It is quite possible also that this change is brought about by GHG emissions. There is a plausible scientific hypothesis about cause and effect supporting this. But common sense nonetheless suggests two observations.
First, nature cannot mysteriously have ceased to contribute to climate change. Long before man could in any way influence climate, it was changing. The Icelanders were able to reach North America in the year 1000, and briefly to settle there, not least because they were navigating the North Atlantic Ocean in a relatively warm period. Then, the largest Icelandic glacier, Vatnajokull, was much smaller than today. In the subsequent ‘little Ice Age’ between 1309 and 1814, the glacier expanded considerably. In England, Thames River froze over 23 times in that period, sometimes for two months at a time. These climate changes certainly were not made by man. Today, nature cannot have pulled out entirely. The question is of course how much of observed climate change is contributed by nature and how much by man. Who knows?
The second observation is how implausible it is that somehow in the last two decades of the twentieth century, mankind had miraculously hit on an optimal climate (if it has any meaning to speak of one climate) so that any significant change from it must be negative. Undeniably, any significant climate change is bound to have both negative and positive effects. In the case of global warming, the two most important negative effects on man seem to be increasing sea levels and the disruption of individual plans which had presupposed present conditions. A non-negligible negative effect on nature is probably the disappearance of species that have adapted specially to present conditions. On the other hand, the most important positive effects of global warming probably are an increase in the yield of crops as well as a vast increase in arable land (for example in the arctic regions). It is a little-reported fact that the earth has been getting greener over the last few decades. An argument can be made that the estimated negative and positive effects probably balance out or at least that it is difficult to say with any certainty that one weighs more than the other.
Even if we assume that the (estimated) negative effects of global warming would outweigh the positive ones, the question arises what we should do about it. The obvious answer seems to be a drastic reduction in GHG emissions (for example brought about by a carbon tax and other measures). But some calculations suggest that this would not make much of a difference, while it would hurt much more than climate change itself. What else could we then do? We should not forget that climate change occurs in space no less than in time. When you move from one part of the world to another, you find various climates, and what you do is that you adapt to them. Of course, you dress differently in Reykjavik than in Rio de Janeiro. The house you build in Tokyo must withstand sharp earthquakes, whereas other considerations apply in other places. It seems sensible that we confront climate change in time in the same way as climate change in space: by adapting to new circumstances.
Implausible Legal Reasoning
The Strasbourg Court was not really asked about any of this, however. It was simply asked whether Switzerland had violated article 8 of the European Convention on Human Rights which guarantees the ‘right to respect for private and family life’. The Court’s answer was yes. Leaving aside the anti-democratic nature of the decision and the uncertainty and immense complexity of the factual claims in the case, I see three serious legal flaws in the Court’s reasoning, in its long-winded and repetitious report. First, the Court accepted that an association of elderly Swiss women had a standing in the issue. This goes against both the Convention itself which only recognised identifiable harm done to persons, non-governmental organisations or groups of individuals, and the accepted practice of the Court in the past. There has to be an identifiable victim, or victims. In a previous judgement, on a complaint about the license for a nuclear power station, the Court had expressly said that ‘the word “victim” means the person directly affected by the act or omission in issue’. It goes without saying that by deciding to hear the complaint of the association of those elderly Swiss women, the Court was making it possible for various organisations in coming years to apply to it in the name of the public interest, the common good, the general will, future generations, or other such vague term, even if there was no clear and identifiable harm done to any individual, no victim, no violation.
Secondly, the Court was obviously inventing a new right when it interpreted the ‘right to respect for private and family life’ as including ‘a right for individuals to effective protection by the State authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life’. The right to respect for private and family life is mainly about non-intrusion. This is a right against others, defining and describing a protected domain that individuals and their families enjoy. It is for example a right against those who invade your privacy by taking unauthorised photographs of you, especially in unplanned or intimate situations, or by installing cameras pointed at your windows or your garden. It is also a right against those who would pollute your water supply or throw garbage into your garden. This right requires from others precisely what says in the article: respect. It does not require resources from other individuals or from the taxpayers, except of course what is needed to uphold law and order and protect the family (which might mean, for example, child benefits, a debatable, although plausible, extension of the article’s meaning). The British judge—who was the sole dissenting voice—correctly pointed out that his colleagues had no basis either in the text of the Convention nor in any of the Court’s case-law for the alleged violation of respect for private and family life.
Thirdly, the decision is based on speculation about what might happen in the future. The claim to be a victim of some possible future violation of the Convention is inherently problematic. In a previous case from 1995, on a complaint about nuclear testing in Tahiti, the Court deemed it inadmissible because applicants had to have ‘an arguable and detailed claim that, owing to the authorities’ failure to take adequate precautions, the degree of probability that damage will occur is such that it may be deemed to be a violation, on condition that the consequences of the act complained of are not too remote’. Thus, the alleged consequences of an omission have to be probable and not too remote. In the Swiss case, the Court admitted: ‘It is only in highly exceptional circumstances that an applicant may nevertheless claim to be a victim of a violation of the Convention owing to the risk of a future violation.’ Yet it went on to find for the applicant. It failed to show that the circumstances were ‘highly exceptional’. There was no great urgency about GHG emissions from Switzerland: they were about 0.1 per cent of the world total. There was no clear, serious and identifiable health risk involved, only stories by elderly women about their discomfort on hot summer days.
We must not lose sight of what the European Convention on Human Rights was about. It was adopted in 1950, after a terrible war in which the spectre of totalitarianism had haunted Europe. The Nazis and the communists killed innocent people, imprisoned and tortured others, subjected all to censorship, spied on ordinary citizens, expropriated assets, deprived people of their jobs, and intimidated them in various other ways. The Convention was supposed to protect individuals against arbitrary power and ensure fundamental freedoms in ‘European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law’. The rights enshrined in it were mostly ‘negative’ rights, about the duty of others to an individual to refrain from improper interference with him or her, not claims to his or her assets or time. There was a good reason for this. If human rights are meaningful, they must be general: therefore they are called ‘human’ and not ‘national’. This is practicable when the rights are about refraining from aggressive behaviour. I just respect your right to express your opinion, whether you live in Iceland, Ireland, or India, but I am not obliged to listen to you or to provide you with the means necessary to make your opinion known to many. I need not do anything. But if the rights are claims to the assets of other individuals, such rights reduce their freedom to dispose of those assets in the way they choose. Moreover, if the rights are supposed to be general rights to decent living standards, they would imply massive and costly redistribution from rich to poor countries. ‘Positive’ rights are simply not practicable on a global level. Therefore they cannot be human rights.
Follow the Science?
The Strasbourg Court appealed to science. But scientists can be wrong, even when (perhaps especially when) they form a large majority in the science community. In science there are no final truths, only conjectures which should be critically examined and tested. The most relevant case here is that of Carrie Buck, heard by the United States Supreme Court in 1927. Under the influence of eugenics, in early twentieth century many states, both in Europe and North America, had passed laws allowing government agencies to sterilise people deemed unfit to have children. Buck had been placed with foster parents at birth, because her mother had had several children out of wedlock. When Carrie was seventeen, she became pregnant. Her foster parents had her committed to a colony for imbeciles where she gave birth to her child, after which she was sterilised under an act of the Commonwealth of Virginia. The Supreme Court decided to uphold the act. Justice Oliver Wendell Holmes wrote with disdain that ‘Three generations of imbeciles are enough’. Much later, however, when the case was investigated by interested laymen, it turned out that Carrie was of normal intelligence. She had been raped by a relative of her foster parents. Subsequently they had tried to hush up the affair by having her committed to the colony. Carrie’s daughter was no imbecile, either. Carrie Buck was eventually released from the colony.
We now know that eugenics has no sounder scientific basis than does astrology. The Supreme Court of the United States was guided by a pseudo-science. But for a while eugenics was taken seriously, and sterilisation programmes were implemented in many countries in the 1930s and beyond. In Sweden between 1935 and 1975, more than 60,000 people were subjected to sterilisation, mostly women. The German Nazis sterilised more than 400,000 people. Another glaring example of science gone astray was the alleged ‘population bomb’. In a book by that name, American biologist Paul R. Ehrlich in 1968 confidently stated that ‘in the 1970s hundreds of millions of people will starve to death in spite of any crash programs embarked upon now’. Quite the contrary: food production greatly increased, while famines almost disappeared. However, listening to the prophets of doom, the Chinese government embarked on the ‘one-child’ policy, causing untold misery in countless families. Enforced mass sterilisations were also implemented in India and China. In India such a programme, involving millions of people, was encouraged by the Swedish International Development Authority, the World Bank and the U.N. Population Fund.
From my years in England, I still remember yet another example of science gone astray, albeit a bit more innocuous, because not taken seriously by the powers to be. In March 1981, 364 economists, including distinguished scholars like Anthony Giddens, James E. Meade, and Amartya Sen, and some less distinguished people like Willem Buiter, Nicholas Stern, and Julian Le Grand, signed a statement protesting the policies of Margaret Thatcher which had, the signatories asserted, ‘no basis in economic theory’. They added confidently that these policies would ‘deepen the depression’. In the House of Commons, Thatcher was challenged by the Labour Leader to name just two British economists who agreed with her. ‘Alan Walters and Patrick Minford,’ she retorted. In the car on the way back to 10 Downing Street, she remarked drily that fortunately her opponent had not asked for three names! In fact, Thatcher’s policies had their basis in classical economic theory, and they did not deepen the depression. On the contrary, unemployment went down, the British economy recovered, and Thatcher continued with her reforms, lasting longer in office than any other British Prime Minister since Lord Liverpool in early nineteenth century.
‘Follow the science,’ is sometimes said. Perhaps we should instead follow the money. There is no doubt where the money is: In predictions about an impending disaster. If you are an aspiring scholar, you do not get a university appointment, or promotions, or grants, or publications accepted in learned journals, unless you profess your unqualified belief in global warming when it comes up. The adage that it is not news if dog bites man, only if man bites dog, applies also to journalists: it is not news if the world will stay around, only if it is about to collapse. The plausible scientific hypothesis about some man-made global warming as a result of GHG emissions has been abused by power-hungry leftists, alarmists and scaremongers. Global warming is no longer about science. It is about a lucrative industry. It is also about power. The Strasbourg judges are wielding power which was never given to them. They see themselves as Platonic Guardians, above the fray, telling us the lesser beings what to do. They are making laws and inventing rights instead of strictly decisions according to the letter and the spirit of the European Convention on Human Rights.