Published in Counsel — The Magazine of the Bar of England and Wales, 14 October 2024; also on Exchange Chambers.

Can — and should — judicial activism protect humans from the serious danger of climate change? This is the question examined here, against the backdrop of the European Court of Human Rights’ landmark ruling in Verein KlimaSeniorinnen Schweiz v. Switzerland — the first case in which the Court found a state had violated the European Convention on Human Rights by failing to take sufficient action on climate change.

The term ‘judicial activism’ was first coined in the US by Arthur Schlesinger Jr in 1947 and has since become something of a pejorative — invariably used as a slur to describe judges who allow personal views about public policy to guide their decisions. But as climate science becomes ever more incontrovertible and democratic institutions continue to fall short of what the science demands, the question of whether courts have a legitimate and necessary role in compelling climate action becomes ever more pressing.

The informed critics of the ECtHR’s decision, including the UK judge Tim Eicke KC who issued a scathing dissent, argue that the majority went beyond what is legitimate for the court to do. But the principle that the ECHR is a ‘living document’ requiring evolutive interpretation is well-established. The question is not whether courts should adapt to new realities, but how far, and how fast.

Read the full article in Counsel Magazine →