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Abandonment of the Grand Chamber: the issue of climate change


introduction:

European Court of Human Rights on Friday, 29 April [ECtHR] declared that the Swiss climate matter [Verein KlimaSeniorinnen and Others vs Switzerland] Was left in the Grand Chamber. The Competent Chamber of ECTHR left the authority to the Grand Chamber in compliance Article 30 of ECHR and rules 72(1) and (2) court rules, This disclaimer may be exercised, firstly, when the 7 judges agree that the issue ‘raises a serious question affecting the interpretation of the ECHR or its protocols, or secondly, where there is an opportunity to deviate from the preceding case laws. Is’.

Actual Background:

The Swiss Climate Case involves a complaint filed by the Swiss Association and its members [a group of elderly individuals] Those who are protesting the effects of global warming on their health and standard of living. The applications mentioned three primary issues: first, inadequate climate policies in Switzerland that violate the right to life and health under Articles 2 and 8 of the ECTHR; second, the Swiss Federal Supreme Court dismissed their cases on irrational grounds, in violation of Article 6 of the Convention; and third, the courts and the Swiss authorities did not comply with the content of their complaints in violation of Article 13 of the Convention.

The significance of the Swiss climate case is that it will be the first climate change case to be adjudicated by the ECTHR. Although Duarte Agostinho and others The first case to bring up the topic of climate change was the Swiss Climate Case and Agostinho addresses a variety of legal issues.

rules:

The Competent Chamber of ECTHR left the authority to the Grand Chamber in compliance Article 30 of ECHR and rules 72(1) and (2) court rules, This disclaimer may be exercised, firstly, when the 7 judges agree that the issue ‘raises a serious question affecting the interpretation of the ECHR or its protocols, or secondly, where there is an opportunity to deviate from the preceding case laws. Is’.

In the case of Tatar vs RomaniaThe Court emphasized that pollution can harm the personal and family sphere of a person as pollution harms the well being and health of the individual. In addition, the government has a responsibility to protect its people by controlling and controlling the authorization, installation, functionality and safety of industrial operations, especially those that are hazardous to the environment and human health.

analysis:

I. Victim status:

The acceptance phase, in particular the acceptance of the ‘victim status’, would be the initial hurdle for the Swiss climate case. According to Article 34 of the Convention, the applicant may allege ‘being the victim of a breach’ of the rights in the Convention by one of the States. If the claim is an omission to take an appropriate remedy mandated by a constructive liability, a legal assessment will inevitably require at least one investigation as to whether the complainants have a victim status. In addition, to be the victim of a breach, the applicant must demonstrate that he was ‘directly affected’ by the actions complained of, as in the present case, despite an international duty binding on Switzerland for the alleged actions of necessary omitted implementation.

In the case of Cordella vs Italy, the Court ruled that individuals are ‘directly affected’ by the measures complained of if a ‘great environmental hazard’ situation persists, in which the environmental risk is ‘potentially harmful to the well-being and health of those persons Will go who are under it’. The Swiss climate case meets that standard because Swiss authorities have not taken affirmative action to protect elderly individuals who will be subject to intense heat waves in the future.

In Swiss Climate the applicant argued that the applicant organization should be given representative status for its members. This contradicts the previous precedent, as the Court does not entertain petitions in the public interest. [‘actio popularis’], However, in the case of fadeyevThe court noted that because the Convention has no ‘right to the protection of nature’, in order to apply Article 8 of the Convention in cases of environmental degradation ‘involving the domestic, household or private affairs of the applicant must be personally affected’ .

  1. Affirmative Obligation in the Convention:

Generally, affirmative duties are those that compel member states to take some action. They are necessary where (I) there is a known and serious threat to the exercise of a right, and (II) the State has the ability to limit, reduce, or remove the consequences of that threat. 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-Shafroth and others c. SwitzerlandThe Grand Chamber pointed to a ‘danger which was not only significant but also precise and most importantly imminent’.

two types positive duty Those who have been recognized by the ECTHR for protection may coexist in the same situation, whether in the context of domestic violence or various other risks. The Swiss climate case essentially turns to the issue of preventive affirmative duties under Articles 2 and 8 of the Convention. Applicants note the negative consequences of the absence of climate change prevention measures. see case of Bevaqua and others vs Bulgaria,

Case law and court precedent accepting duty to protect against wider risks by legal and other action [and the recognition that there can be potential victims, before damage has occurred] There is a conceptual impact on the assessment of victim status provision. The protection will become ineffective if claims of default in action in respect of a particular act receive preferential consideration of outright risks over claims of breach of duty to protect them from potentially serious risks at a larger scale. Certainly, the affirmative duty at issue in the present case is primarily directed at the law-maker. [and as the Swiss Federal Tribunal stated, the duties are consequently of importance to political entities], However, due to the legitimate character of the duties, their invocation should not be considered unacceptable on account of procedural grounds.

conclusion:

Humanity is facing a worldwide climate disaster that is already having devastating consequences for human rights. In order to survive the wave of devastating climate change and human rights abuses, urgent, comprehensive and revolutionary reforms are necessary. When states fail to adopt effective measures to meet the objectives of the Paris Agreement, international human rights courts may grant adequate protection to elderly people or other vulnerable persons who are at risk from devastating heat waves and its associated consequences. The Court’s response to this conclusion is expected to reflect how it will handle future climate issues, and will be echoed in court decisions by domestic courts as well as various other human rights organizations. The ECTHR will act as a court of law within the scope of its jurisdiction, always bearing in mind that Convention protections must be practical and real, not fictitious.



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