Carbon Crimes and Carbon Victims

The recent failure of the “Berlin 2030” referendum highlights the recurring failure of environmental groups to mobilise the support of elderly voters. This stands in stark contrast to the recent news that a group of senior women is taking the Swiss government to the European Court of Human Rights (‘ECtHR’) for potentially fatal climate crimes. It also raises the question: should the climate movement recalibrate its focus on the human rights victims of climate change to include elderly westerners? In addition, as the political and financial arenas have apparently been claimed by the climate deniers, could the law provide the climate movement with the much-needed path to preventing irreversible climate change?

On 26 March, almost 900,000 Berliners voted in a referendum which proposed to bring forward the city’s carbon-neutrality deadline from 2030 to 2045. Although there were marginally more votes in favour than against (442,000 vs 423,000), the referendum failed to reach the 25% Quorum (608,000 yes votes), making it the latest in a long line of unsuccessful democratic initiatives to stop Global Warming. Across the border in Switzerland, a much less ambitious proposition - to cut the nation’s greenhouse gas emissions to 50% by the end of the decade - was defeated in a 2021 referendum. In Berlin, the four districts with the highest percentage of “no” votes were also four of the five districts with the highest mean ages in the city. Age is not only a factor in Europe: Chileans resoundingly rejected a draft constitution last year which would have prioritised environmental policies, with voters in the 50+ age bracket markedly voting against the climate-friendly policies. Indeed, the trend continues in the US, where multiple studies demonstrate that Generation Z and Millennials across the political spectrum are more worried about climate change than Generation X and Baby Boomers. The fact that the global climate movement is paying the price for failing to garner the support of the older generations has not escaped the attention of academics: a 2022 review of climate change activists’ communication “identified a general tendency to blame older persons for their (in)action over the years, which has contributed to the current climate situation”. In the words of renowned American sociologist Karl Pillemer:

“Older adults often have more time for civic engagement and volunteerism, and they may have critical lived experience and expertise to contribute to the cause. To date, however, environmental organizations have not been successful in maximizing older people’s involvement…”

Astonishingly, however, the trend was completely reversed in Switzerland, where voters aged 65 years and older largely voted in favour of the 2021 proposal, whereas 18-35 year olds voted against it. This is almost certainly tied to the growing body of evidence which suggests that elderly people, especially in Switzerland, are disproportionately affected by climate change. According to swissinfo.ch, “Switzerland’s temperatures are rising at about twice the pace of the global average”, with another study finding that 87% of heat-related deaths in the country between 1969–2017 occurred in those aged 65 and over. Globally, the number of heat-related deaths in 2019 in individuals over 65 was estimated by the 2021 Lancet Countdown to be 345,000 – an 80% increase on the 2000–2005 average.

In fact, these findings have driven a group of 2,000 Swiss women to take their government to the European Court of Human Rights in late March, for purportedly failing to reduce their greenhouse emissions in line with the Paris Climate Accord. The KlimaSeniorinnen (“Senior Women for Climate Protection”), boasting an average age of 73, claim that the inaction of the Swiss authorities has led to an infringement on their right to life, as enshrined by Article 2 of European Convention of Human Rights (‘ECHR’):

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

The ECtHR will also hear a similar case this summer by Damien Carême (63), former mayor of Grande-Synthe, who is arguing that the French Government has neglected its climate duties, and in doing so exacerbated the long term threat of submersion facing his hometown with the rise in sea levels. The French Government has defended itself by claiming that the threat to Carême's life cannot be directly tied to its actions. Similarly, the Swiss Government has argued that a single state cannot be held accountable for a global issue like climate change, also pointing to the outcome of the 2021 referendum as evidence that their policies have reflected public opinion.

Nevertheless, the KlimaSeniorinnen and Carême cases are historic, as they represent the first time in the history of the Strasbourg-based ECHR that governments have gone on trial over their climate policies. Should they be successful, they could set a precedent not just for the 46 Member States of the Council of Europe and their climate policies, but also for the climate movement in general.

Firstly, these lawsuits could enthuse elderly people to support the climate movement. As has been established, there is clearly a paradoxical relationship between older people and the environment, as they often vote against climate-friendly policies and parties despite being the most vulnerable group to extreme weather events caused by climate change. As KlimaSeniorinnen and Carême demonstrate, this paradox is resolved when it becomes clear to elderly people that their human rights are directly affected by the climate inaction of their governments, causing them to become politically engaged. Recent research has corroborated this observation: in order to garner the support of demographics which are often opposed to climate change mitigation, the message needs to change to focus on the local rather than global effects of climate change. In other words, climate activists may benefit from publicising the effects of climate change on the human rights of groups where so-called climate-denial is prevalent, as opposed to those of people in developing countries, as is usually the case. In the words of the climate psychologist Jessica Kleczka, “climate deniers are victims, not villains.”

Furthermore, the KlimaSeniorinnen case has highlighted that there is currently no international legally binding instrument to protect the human rights of older persons. In contrast, the rights of children have been protected internationally since the 1959 Declaration of the Rights of the Child. According to the UN Independent Expert on the enjoyment of all human rights by older persons, Claudia Mahler, the Covid-19 crisis exposed the fact that elderly people are effectively “invisible” to the application of international human rights law. With the global population ageing at an unprecedented rate, the need for an international legal framework to protect the rights of the group most vulnerable to the consequences of climate change will soon become indisputable. The majority of people killed by Hurricane Katrina, an event reportedly exacerbated by global warming, were aged 75 or over, serving as a reminder that elderly people across the world are most at threat from extreme weather events. Thus, if the Swiss women receive a positive verdict in the autumn, it could inspire people not only to do more to protect the environment, but also to cross national and generational divides to protect the human rights of the elderly.

Lastly, legal action could offer a welcome alternative to political or economic activism, neither of which have consistently provided the results necessary to combat climate change. With referendums and general elections across the world often halting the progress of climate movements, and climate-friendly financial measures such as carbon and pollution taxes being introduced far too cautiously and sporadically to enact a meaningful impact, lawsuits such as those entered by KlimaSeniorinnen and Carême could be relied upon to force governments and corporations to act in a sustainable way. In addition, activism through the law could help ensure that the transition to a net-zero society prioritises social justice by delivering financial compensation straight to carbon victims, unlike carbon taxes which are often regressive. At the same time, many western, pro-environment organisations and political parties have alienated typically older, right-wing voters by taking the view that radical left-wing policies must be implemented globally to prevent irreversible climate change as. For example, the Great Thunberg-inspired Fridays For Futures movement has claimed that effective climate change mitigation is impossible without bringing an end to capitalism, drawing the ire of many older, right-wing spokespeople.

The courts, on the other hand, could also be seen as a less biased and more reliable platform for punishing carbon criminals and compensating their victims. Indeed, an analysis by the LSE’s Grantham Institute last year found that climate litigation cases around the globe have more than doubled since 2015, showing that the public have already begun to perceive the courts as a viable method of achieving climate justice. Moreover, public institutions are not the only ones being held accountable for climate crimes: in July 2019, lawyers from the environmental law charity ClientEarth successfully took action against the sponsors of Poland’s last planned new coal plant, leading to the suspension of its construction.

However, since then, Poland and a number of other Eastern European countries, have suffered a rule of law crisis. In addition, as the Swiss Government pointed out in their defence against the claim of the KlimaSeniorinnen, a “legalisating” of the process of creating climate policies “could only create tensions from the perspective of the separation of powers and the principle of subsidiarity” (the notion that decisions are retained by Member States if the intervention of the European Union is not necessary). The legal avenue for climate activism is clearly not devoid of issues, at least in the European context. Nevertheless, a number of studies have found that climate change litigation is indispensable for increasing “public, political and commercial awareness about climate change issues”. Given the increased levels of anxiety across Europe regarding the effects of the Covid-19 crisis and the war in Ukraine on the global economy, it is more important than ever for the climate movement to inspire followers with potential success stories, such as that of the Klimaseniorinnen.

Climate lawsuits could thus be initiated by, on behalf of, and for the benefit of those people who have blocked climate change mitigation in the past, potentially causing a shift in the public perception, and therefore the fortunes, of the movement.

To summarise, it appears that elderly people are less likely to help prevent climate change unless they feel that their human rights are directly affected by the extreme weather events tied to it. It may therefore benefit the climate movement to focus on more local human rights implications of global warming in order to secure their much-needed support. The law, with the power to deliver both equitable and long-term solutions to the friction caused by the transition to a carbon-neutral society, may provide a platform for this shift in public perception. Last but not least, if the cases brought to the ECtHR this year are successful, they may also inspire the creation of a first international organisation to monitor and protect the human rights of elderly people.

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Both pictures from https://unsplash.com/s/photos/climate-change