STATUTORY INTERPRETATION: NATURAL MEANING AND CONTEXT

on behalf of the applicants in Sharma, the applicants in Duarte Agostinho submit that climate change currently poses a risk to their lives and health, and this will only worsen with time. Separately, an association of senior women has filed a complaint before the ECtHR similarly arguing that the Swiss authorities have violated the positive obligations it owes them under Articles 2 and 8 of the ECHR by failing adequately to address climate change (Verein KlimaSeniorinnen Schweiz and Ors v Switzerland, App No. 53600/20). As with the applicants in Duarte Agostinho, and in contrast to the applicants in Sharma, the elderly complainants in Verein KlimaSeniorinnen Schweiz argue that they have already suffered harm because of climate change. While the likely outcome of both sets of complaints before the ECtHR is, at this stage, anyone’s guess, several aspects of the proceedings in Sharma may be of relevance. First, as noted, the applicants in the complaints before the ECtHR have argued that they have already suffered damage and their complaints are against the state as a whole, as distinct from a specific minister exercising a limited statutory power whose possible breach is related to an indeterminate harm at an indeterminate time. Issues of proximity and harm are, therefore, unlikely to be as significant in the ECtHR proceedings as they were in Sharma. Nevertheless, questions regarding foreseeability and control over the harm will no doubt assume importance before the ECtHR, particularly given that climate change is a global issue. While the law of negligence may not be the answer for individuals seeking to compel states to act to address the current climate crisis and to prevent future catastrophe, human rights law is increasingly invoked by litigants to fill some of that lacuna in protection. Only time will tell whether the ECHR, as interpreted by the ECtHR, provides such protection. As for the law of negligence, concepts such as “sufficient closeness and directness” and indeterminacy “may have reached their shelf life, particularly where one is dealing with acts or omissions that have wide-scale consequences that transcend confined temporal boundaries and geographic ranges, and where more than direct mechanistic causal pathways are involved” (at [754]).