Shaping the Future of Climate Justice and Human Rights: The Case of KlimaSeniorinnen v. Switzerland
By Peter Jacobs and Sophie Verbeek*
Intro
The European Court of Human Rights (the Court/ECtHR) on 9 April 2024 handed down a historic judgement as the Court recognised the failure of Switzerland to protect the applicants from the ill effects of climate change, finding these rights to reside within Article 8 of the European Convention on Human Rights (ECHR). The Court has now, with this verdict, indelibly tied the provisions of Article 8 ECHR with State obligations to prevent an increase in greenhouse gas emission (GHG) levels, though the case holds ample other important conclusions made by the Court.
This piece will first trace the origins of this judgement, then highlight the most important legal principles referenced by the Court, and, finally, conclude with some critical analysis of the politics of the Court, casting the mind forward to the future of international climate litigation. Overall, having read this piece, the reader can hope to be clued in to the basis for the Court’s finding in this case, equipped with a conceptual understanding of the principles engaged and alive to the fault lines that will continue to illuminate the ECtHR’s climate litigation.
Journey of the Case
Already in 2016, Verein KlimaSeniorinnen Schweiz (VKS) filed their first suit against the Swiss Federal Council, the Federal Office for the Environment and other Swiss government organs for failing to uphold obligations under the Swiss Constitution and the ECHR. More specifically, they alleged a violation of Articles 10 (right to life), 73 (sustainability principle) and 74 (environmental protection) of the Swiss Constitution and Articles 2 (right to life) and 8 ECHR (the right to respect for one’s home and private life, including physical integrity, health and wellbeing), as Switzerland was not abiding by an emissions reduction trajectory that kept global temperatures well below 2°C pre-industrial levels.
The following years saw several rejections of the applicant’s case in Switzerland, which eventually led VKS to file a complaint in 2020 with the ECtHR. The Grand Chamber of the Court finally released its 260 page long judgement last March. In its judgement, the Court extensively tackled the question of victim status and States’ positive obligations in the climate change contexts, though some other key principles in climate litigation were also coined.
Standing
The first challenge that had to be overcome in the pursuit of success was on the question of victim status. In fact, the Klimaseniorinnen case had been widely anticipated on the question of victim status in climate change-related contexts. Due to the widespread and long-term nature of the adverse effects of climate change, the question of victim status in this context has been highly controversial. In Klimaseniorinnen, five applicants aimed to achieve standing before the Court. While the first applicant, VKS, was a non-profit association bringing the claim on behalf of its members, the other four applicants were all individuals bringing claims on their own behalf. Consequently, the Klimaseniorinnen offered a two-pronged opportunity for the Court to resolve the issue of victim status both in relation to individual applicants as well as applications by associations. In the end, it was only the first applicant - VKS - to which the Court granted locus standi (para. 526).
Victim Status of Individuals
In relation to the individual applicants’ standing, the Court reiterated its previous stance (see Di Sarno and Others) that an application complaining of general environmental damage is insufficient to achieve standing before the Court and that, instead, ‘the applicant needs to show he or she is directly impacted by the environmental damage or risk complained of’ (paras. 472; 483). To that end, the Court outlined the following conditions:
the applicant must be subject to a high intensity of exposure to the adverse effects of climate change, that is, the level and severity of (the risk of) adverse consequences of governmental action or inaction affecting the applicant must be significant (para. 487a); and
there must be a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm (para. 487b).
The Court further noted that the threshold for fulfilling these criteria was especially high and that this would depend on a careful assessment of the concrete circumstances of each case, such as ‘the nature and scope of the applicant’s Convention complaint, the actuality/remoteness and/or probability of the adverse effects of climate change in time, the specific impact on the applicant’s life, health or well-being, the magnitude and duration of the harmful effects, the scope of the risk (localised or general), and the nature of the applicant’s vulnerability’ (para. 488).
Applying these principles to the individual applicants in KlimaSeniorinnen, the Court acknowledged that the applicants had suffered more intensely under the effects of heatwaves given their old age and the grave risk of inevitability and irreversibility of the adverse effects of climate change, affecting their quality of life (paras. 513-533). Nevertheless, the mere fact of belonging to an older age group was not sufficient to give them victim status; the evidence did not convince the Court that the applicants were exposed, or were at risk of being exposed, to the adverse effects of climate change in such as a way as to give rise to a ‘pressing need to ensure their individual protection’ (para. 533). From the Court’s reasoning it would appear that such a need would have only been granted if the applicants had been suffering from a medical condition that would be aggravated as a result of the heatwaves (para. 533). Since this was not the case, they were not presently in need of specific protection. Additionally, the Court emphasised that only in exceptional circumstances can future risk be seen as a qualifying condition concerning victim status and that it was not convinced these exceptional circumstances were present in this case (para. 533). Unfortunately, the Court beats around the bush in specifying what exceptional circumstances would, in fact, warrant such a future risk recognition by the Court. In light of the above, the individual applicants did not meet the necessary conditions for victim status under the Convention.
Victim Status of Associations
As for the victim status of the applicant association, VKS had brought the complaint on behalf of their members - women mostly over the age of 70 - arguing that due to the effects of climate change producing heat waves in their places of living, their lifestyles had altered, and they had suffered health problems as a result. Under the Convention system associations have standing only in very limited situations due to the prohibition of bringing an actio popularis. Meaning that ‘an applicant cannot lodge a claim in the public or general interest if the impugned measure or act does not affect him or her directly’ (paras. 473-474). Nevertheless, in the specific context of climate change as ‘a common concern of humankind’ and where ‘intergenerational burden-sharing assumes particular importance’ the Court placed particular importance on giving recourse to collective entities ‘to defend the rights and interests of affected or concerned individuals’ (paras. 489-490). In light of this - as well as some other considerations (see paras. 489-503) - the Court came to the conclusion that in the specific context of climate change associations could be granted standing, as long as they fulfilled certain conditions in relation to their lawful establishment, purpose, and legitimacy as a representative of its members ‘who are subject to these specific threats or adverse effects of climate change’ (para. 502).
In regard to the applicant association in KlimaSeniorinnen, VKS was established to promote and protect effective climate protection on behalf of its members, which were women mostly over the age of 70, united by the same complaint: due to the effects of climate change producing heat waves in their places of living, their lifestyles had altered, and they had suffered health problems as a result. In light of this, the Court found that VKS fulfilled the required conditions for standing under Article 8 ECHR (paras. 521-526).
No Violation under Article 2 ECHR
Both applicants had complained that the adverse consequences of climate change had violated their rights under Articles 2 (right to life) and 8 (the right to respect for one’s home and private life, including physical integrity, health and wellbeing) ECHR. However, the Court had only found victim status under Article 8 ECHR, rejecting their claims under Article 2 ECHR.
Analysing previous case law and reiterating that Article 2 cannot simply operate in abstract circumstances, the Court came to the conclusion that in order for Article 2 to apply to State actions or omissions in the context of climate change, there has to be a ‘real and immediate’ risk to life (para. 511). Meaning that there must be a ‘serious, genuine and sufficiently ascertainable threat to life, containing an element of material and temporal proximity of the threat to the harm complained of’ (para. 513). The Court analysed the applicability of Article 2 to the facts of the specific case in a single paragraph, explaining that the matter was ‘questionable’ on the grounds that there was doubt as to the existence of such ‘life-threatening consequences’ to meet the high threshold under Article 2 ECHR (para. 536).
On the above-elaborated grounds the Court found the association to have standing under Article 8 ECHR, dismissing the complaints under Article 2 ECHR, - though it did consider relevant Article 2 principles in its Article 8 assessment of a violation. It was also on this basis that the Court outlined the specific positive obligations States have in climate change contexts, which will be addressed below.
Positive Obligations of States
It was the first time the Court was asked to apply the State obligations under the Convention to the climate change context. This was not an easy feat, given the subsidiarity principle was invoked by many countries, including Switzerland. Essentially, it means that States have the primary responsibility to secure the rights and freedoms defined in the Convention, and in doing so they enjoy a margin of appreciation. This subsidiarity principle is a cornerstone of the Convention system so the Court was careful in expanding the Convention obligation in light of the climate emergency, while also sticking to its living instrument doctrine (para. 434). Importantly, the Court acknowledged that ‘there was now no doubt as to the catastrophic implications of climate change’ (para. 334), and that the primary cause for anthropogenic climate change was the accumulation of GHG in the Earth’s atmosphere evidenced by internationally recognized agreements like the IPCC, UNFCCC, and the Paris Agreement (para. 410). Having regard to the nature and gravity of the threat that climate change poses, the Court highlighted the different margins of appreciation concerning positive climate obligations, i.e. the deference that the Court gives Contracting States to fulfil their obligations under the Convention. This margin is smaller when it comes to the obligations of Contracting States to mitigate climate change, but wider deciding through which means they wish to implement those obligations domestically (para. 543). It then outlined how Contracting States can implement these commitments and remain within the latter margin of appreciation:
Adopt general measures, such as measures to achieve carbon neutrality and the implementation of a carbon budget (para. 550a);
Setting out intermediate GHG emissions reduction targets that meet the overall national GHG reduction goals within relevant decided timeframes (para. 550b);
Provide evidence that the State has complied, or is currently in the process of complying, with these targets (para. 550c);
Keep GHG reduction targets updated with due diligence and the best available evidence (para. 550d);
In good time, act in an appropriate and consistent manner when devising and implementing the relevant legislation and measures (para. 550e);
Lastly, the implementation of these measures must be genuinely feasible to avoid a disproportionate burden on future generations (para. 549).
With these domestic measures in mind, the Court ruled that Switzerland exceeded its deference by failing to implement a domestic regulatory framework, specifically in failing to quantify a carbon budget and national GHG emissions limitations. A Swiss 2011 CO2 Act target of a 20% reduction by 2020 compared to 1990 levels was missed (it was 11%), and initial proposals to increase this threshold even further were rejected by a popular referendum in June 2021. Further attempts to address these shortcomings were largely in vain (para. 561). While this legal vacuum has since been filled with a 2023 Climate Act containing more ambitious obligations (e.g. net neutrality by 2050), the means to achieve these measures would be determined ‘in good time’. As Switzerland previously failed to meet its GHG emissions targets, a mere introduction of new legislation and it being implemented ‘in good time’ was not sufficient to remedy past shortcomings. As such, the Court agreed (16-1) that Switzerland failed to comply with its positive obligations per paragraph 550, violating Article 8 ECHR.
Importantly, the Court acknowledged that State inaction, now also in climate-change contexts, can violate Article 8 ECHR. This broadening of Article 8 ECHR interpretation adds States’ obligations under the UNFCCC and Paris frameworks and requires that domestic measures have to prevent ‘serious and irreversible adverse effects on human rights’ (para. 546) to mitigate the disproportionate burden climate change has on future generations. The wide deference given to national governments concerning chosen measures is disappointing, as in the Swiss case, it could lead to policy implementations which are ambiguous in nature and insufficient to meet the 1.5°C limit under their international obligations. At the very least, the Court detailed what these measures look like, rather than saying States need to do ‘more’, making it significantly more difficult for Contracting States to hide under the veil of subsidiarity and disproportionality.
Precautionary Principle
One of the most notable aspects of this case was its reference to a whole host of commonly used principles of international environmental law. For instance, the precautionary principle, namely the idea that scientific uncertainty does not preclude States’ positive obligations. The Court rightly addressed the principle as not yet an uncontroversial rule of international environmental law, but nonetheless made several references to its most prominent deployment to date in the Tătar case (paras. 332, 364).
Intergenerational Burden-Sharing
The reference to inter-generational burden sharing (a close relation to the concept of intra / inter generational equity) (IGBS) is very pertinent and its applicability was also analysed by the Court. This is the notion that those alive now owe duties of climate mitigation to people of different ages in our present era, as well as to those in the distant future.
In a notable distinction, the Court demarcated two forms of IGBS:
a. The duties owed between living generations; and
b. The duties owed to future generations.
The Court stressed that the ‘intergenerational perspective’ underscores the risk of unpalatable political decision-making based solely on short-term incentives. The Court stressed that just because future generations cannot personally defend their rights to a habitable Earth, this does not preclude their interests being taken into account in the present (para. 420). It is exactly this evolutive concept of victim status of particular members of society standing to be most affected by climate change, that proved to be a particularly tightrope walk for the Court.
Great Expectations
This judgement adds to an already growing body of binding and non-binding domestic and international climate litigation, such as The Netherlands v. Urgenda Foundation, the upcoming Advisory Opinions of the Inter-American Court of Human Rights (IACtHR) and the International Court of Justice (ICJ). With the ICJAO aiming to specify State obligations concerning climate change under binding international law, this judgement acts as a powerful vehicle in informing the ICJAO, as it carries significant legal authority and can establish legal accountability for States in defining and adhering to their climate change obligations. Though it remains to be seen to what extent the ICJAO can adopt the findings of the Court and define climate obligations on a global scale, this judgement has undoubtedly added to the legitimacy and need for legal certainty in this area of climate-change jurisprudence.
Conclusion
Amidst the myriad of cases heard by the Court this April, the KlimaSeniorinnen case holds the most transformational power, specifically on how positive obligations in climate change contexts should take form under the ECHR. Ever so importantly, the Court did not shy away in highlighting IGBS as a leading principle in climate-change contexts. As we await the Advisory Opinions of the IACtHR and the ICJ, it is not a question of whether, but how, as the Court put it, international courts need address the impacts of environmental harms on human rights (para. 379). Let us hope momentum holds and that climate justice becomes less of an abstract idea and more of a tangible reality.
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*Author Bios
Sophie Verbeek holds a Dual Bachelor’s Degree in Law and International Relations from IE University and is a member of the Academic Taskforce at WYCJ. She has professional experience in research positions at several NGOs and in local government in informing public policy on the SDGs. In September she starts a Masters Humanities Research-Environmental Humanities track at VU Amsterdam.
Peter Jacobs is also a member of the Academic Task Force at WYCJ. Peter works as a Housing Advocate for the Wiltshire Law Centre in the UK. In this role, he represents tenants in County Courts across South-West England in possession proceedings, and conducts judicial reviews of local authority homelessness decisions. Previously, Peter secured a Master of Arts in International Relations from the Friedrich Schiller University of Jena. He will commence his study of the English Bar in September, and is aiming to practise in domestic and international criminal law.